I wanted to respond to a recently posted list of "notable achievements of President Obama on LBGTQ issues" and how the impact of the list is, at points, both overstated and must be balanced against notable, I'll be kind, miscues and injuries by President Obama on LGBT issues. I'm not trying to be divisive with this. I'm trying to convey the real divide between very different camps on Daily Kos that have congealed over the course of the last three and a half years. I'll loosely identify them as the activists vs. the partisans though I don't think those terms fully do justice to the divide in that they probably overstate it and I fully recognize there is a reasonably sized intersection between the camps.
Yes there has been a lot of acrimony. There have been angry words. There have been expressions of hate. It has been pretty disconcerting to watch to say the least. There are a few people, particularly on the partisan side it seems, who love to gin up for the fight and simply ignore the legitimate concerns of the activists.
Recent actions of the President on LGBT issues cannot sweep away or heal this divide in one fell swoop. And if there is to be a healing of the wounds in time for the 2012 elections, there is going to have to be at a minimum some expressions of remorsefulness on both sides, but particularly on the side of the partisans. I'll get to why later, but first I'd like to address the list of notable achievements.
First, I'll say thank goodness that the list has been pared down from Andrew Tobias' very disingenuous, fluff filled list from several months ago. That in itself is progress.
O. The Repeal of Don't Ask, Don't Tell
Or to clarify, the authorization by Congress granting the President, Chairman of the Joint Chiefs of Staff and the Secretary of Defense the power to certify that a repeal of the DADT policy (10 U.S.C. §654) will not negatively affect military readiness, the result of which being that 60 days after certification, 10 U.S.C. §654 is repealed.
This is indeed an accomplishment, but one less impressive than it could have been. When the White House delivered its DADT "take it or leave it" compromise to SLDN and the LGBT community last May, the LGBT activists were a vote away from having enough votes on the Senate Arms Services Committee to attach a full repeal of DADT complete with a non-discrimination policy with the force of law. We didn't get to that point by not pushing as activists. If the activists had not raised the level of exposure of the issue, it simply would have been swept under the rug (or to use Robert Gates phraseology, "push[ed] down the road a bit"). At that point, you literally had White House legislative liaisons to Congress telling members of Congress to oppose attaching the DADT repeal to the Defense Authorization bill.
The diarist quoted Rachel Maddow making a mea culpa on her show.
It, in fact, was not possible for the President to do this through Executive action. This is something that had to happen legislatively if it was really going to happen in a definitive way.
The President did not waver. He DID work on the Senate to get this to happen. He insisted that this was possible against a lot of people, including me, saying it was not possible.
This is a difficult promise kept. It's not just a promise that was kept. It was one that was hard to keep, that cost a lot of political capital and a lot of work and this is the President's victory today and his base will reward him for it.
I must part ways with Ms. Maddow's characterization. While President Obama could repeal DADT himself, he could have issued a stop loss order permitting openly LGB people to serve while the conditions that make the stop loss order possible still exist (still expected to be at least several more years from now). In the intervening time, LGB service members could have come out and be open about who they are. If even a small fraction did, by the time either a new Republican President came into office or the stop loss order conditions ended, the volume of such openly LGB servicemembers would make it a political impossibility to not repeal DADT. The political backlash of discharging perhaps thousands of openly LGB's would have forced a DADT repeal.
Instead we are in a position where when the ban is finally lifted (no earlier than May 1, 2011 at this point), without a nondiscrimination clause in law, full authority over whether LGB's can serve is with the President. It is not difficult to imagine a Republican President in 2013 seizing upon one or two small LGB-related incidents in the military, perhaps even concocted, and magnifying them as a justification to either reinstitute DADT or start kicking LGB's out all together as the pre-1993 policy did. Instead of having a little less than four years of experience with open LGB's serving, at most we will have 20 months and potentially much less the longer the "training" goes on.
It was the President’s choice to continue kicking LGB's out by the hundred's. He had the power to stop that. The use of that power would ultimately lead to the result he claimed to want. Instead he chose a route that necessitated highly visible and loud activism, acts of civil disobedience and even heckling to keep the issue alive. If it weren't for that activism, there would have been no compromise deal in the bill as the Republicans filibustered and thus no room for a subsequent standalone compromise bill with the defense bill as leverage.
1. Extension of benefits to same-sex partners of federal employees
If we did a Politifact analysis and rating of this, it'd rate barely true. When you start talking about extending workplace benefits to spouses or partners of employees, almost everyone's mind immediately turns to things like health (e.g. medical, dental, vision) or pension benefits, but lo and behold neither of these were covered by this extension of benefits. The "benefits" in this extension are very mundane, like moving expenses if the federal employee moves, or the ability to join the long term care plan which is a non-subsidized insurance plan whose rates will not be notably reduced by being on the government's group plan over being in any other group plan. And these were done in the middle of the controversy over the administration using bans on incestuous and ephebophilic marriage as justification for defending DOMA against a challenge in federal court. Moreover, these benefits exist only by the goodwill of the President and can be taken away just as easily as they were given. This achievement can be described in a single word: perfunctory.
2. Signed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act
Signing the hate crime act would have been a very big deal...if it were still 1998. The process of getting it passed in the face of overwhelming public support (consistently 60 to 75% percent of Americans depending on the poll for several years). It was even part of the Defense bill headed for George Bush's desk in the 2007, but DEMOCRATS chose to remove it over the veto threat of a President with the worst approval ratings in the history of President approval polling. It would not have been a difficult get in 2007 if Democrats had had any semblance of a backbone. Even the vote to remove it showed their cowardice, doing it by a voice vote rather than a recorded one. In the run up to the 2009 bill, Obama mentioned the bill once before the House vote...the day before after the whip count already had support well past the threshold needed to pass. His only mention of it after that was before the HRC at their annual dinner and certainly wasn't a strong push to get the Senate to act on it. President Obama's "achievement" on hate crimes is further vitiated by the fact that in the 16 months the act has been law, there has not be a single federal prosecution of a hate crime committed on the basis of sexual orientation or gender identity. Based on the 2009 FBI's Hate Crime statistics report, extrapolating the numbers for the 16 months since the hate crimes act was signed into law, there have been 1887 anti-LGB hate crimes (no anti-T numbers because the reports prior to the 2010 repot to be released in November don't include them, though some may be reported in the other anti-LGB categories) including 6 rapes, 299 aggravated assaults, 651 simple assaults and 429 acts of intimidation. You'd think they could find maybe one or more of them worthy of federal prosecution either by the state not doing enough or the case falling exclusively under federal jurisdiction.
3. Instructed HHS to require any hospital receiving Medicare or Medicaid funds (virtually all hospitals) to allow LGBT visitation rights
We can quibble about the timing, how it took 15 months into the term for them to issue the order to start the rule-making process to put this in place. On the whole, this was very welcome, even if limited. Relatively few LGBT's by absolute numbers experience this discrimination, but it among the most painful forms of discrimination a LGBT person can experience and does go a long way towards alleviating the mental stress that a lack of production inflicts. That said, this is C.F.R., not U.S. Code and can therefore be removed by a subsequent Republican President through the same rule making process.
4. Banned job discrimination based on gender identity throughout the Federal government (the nation's largest employer)
As with #1 and #3, this in practice affects very, very few people (fewer than #1 and #3 I would suppose) and while it is to be applauded, it also suffers from a lack of permanence. Like #3, if falls more into the category of alleviating mental stress than actually having a lasting affect on the broader community.
5. Signed the Ryan White HIV/AIDS Treatment Extension Act
As FogCityJohn has pointed out several times here, it would be gasp worthy if he didn't sign it. It’s like signing an extension of a No Puppy Execution by Blender Act. No sane President wouldn't sign it. If it has been done by every President since it first came up, its not a notable achievement, unless we want to start counting the President wiping his butt as a public health accomplishment even though I'm sure pretty much every President has done the same. In other words, this is fluff...filler...not a true notable accomplishment.
6. Extended the Family and Medical Leave Act to cover Gay employees taking unpaid leave to care for their children of same-sex partners
At first glance this looks big, until you start reading the fine print. First, it doesn't cover partners and spouses. It only applies to same sex couples that have children and only adds coverage for leave by the non-biological parent for care of the child(ren)...and even then only within companies meeting the minimum thresholds for applicability of the Act. Work for a company with fewer than 50 employees? Not covered. Worked part-time with the company less than 1250 hours in the previous year? Not covered. Work for a local government or education institution? Not covered. Moreover, many of the large companies already have such domestic partner provisions in place. This most definitely strengthens them, but for some, this was not new coverage or protection and for many more they still don't have this coverage because they work for a small business.
7. Lifted the HIV Entry Ban
Authorization to end the ban was signed into law by George Bush in July 2008, more than 6 months before Obama entered office. Obama didn't issue the order lifting the ban for another year. This should not have taken 18 months or even 12 months.
8. Implemented HUD Policies that Would Ban Discrimination Based On Gender Identity
This is very welcome, but like #3 suffers from limited scope and the ability to be rescinded through subsequent rulemaking.
9. & 10. Appointed the first ever transgender DNC member & Named open transgender appointees (the first President ever to do so)
Yes he's appointed more LGBT people than any other President, but that's hardly much of an accomplishment given the only real competition was Bill Clinton who left office 8 years prior when transphobia was much more pervasive. However, he's not appointed many LGBTs to high-level positions or policy positions. The highest two appointees are the head of the OPM, who has found himself the subject of lawsuits denying recognition to married LGBT couples and has been defending DOMA in court, and the Ambassador to New Zealand, a nation with which we doesn't require a complex level of diplomacy. He didn't name a single LGB or T cabinet officer. He's appointed two gays to the Federal bench, but as of yet neither has been confirmed. He even showed weakness in one of the appointments naming one of the appointees to the Court of Appeals for the Federal Circuit, an appellate court that does not have general jurisdiction (i.e. he won't ever be ruling on a "gay" case). If both are confirmed, there will be 3 openly gay judges out of around 866 Article III federal judges. That's 0.35% of the judiciary. Given that conservative estimates put LGBT's at no less than 1% of the population, he's got a long way to go to get the numbers up to the level of statistically significant.
11. Eliminated the discriminatory Census Bureau policy that kept LGBT relationships from being counted
Prior to the recent 180 on DOMA, this was probably the most important policy directive he made, reversing the Bush era interpretation of counting those couples where both persons indicate they are of the same sex, whether married in fact or not. And it was done early and quickly, certainly showing it was possible for them to move faster on LGBT issues.
12. Extended domestic violence protections to LGBT victims
See #3 and #8. And another policy change that was a simple matter of statutory interpretation but took 18 months to do.
This is not a list of bold accomplishments. This is a list of things he was willing to do that wouldn't make waves too big or to frequently that Republicans might notice, oblivious to the fact they will notice them all and will seek to undo them zealously when they get back into power. This is certainly not a list to bank support on in the face of the "miscues" with McClurkin and its subsequent "happy gays" press statement, Rick Warren, the Smelt DOMA brief, the pushback against DADT action in 2010 and the persistent defense of DOMA just to name a few.
Which brings us to the 180 they have done on defending DOMA under limited circumstances. This is easily the biggest and boldest move President Obama has made on an LGBT issue and has the potentiality of being the most important advance in the history of LGBT rights in this country's history as properly recognizing the LGBT community as a suspect class or at minimum quasi-suspect class would mean the death knell of just about every form of government sanctioned discrimination against LGBT's in a manner that the protection is virtually permanent (only reversible by a Supreme Court ruling ). But on the balance, it’s not really enough. At the minimum, they are arguing this new found position of the government varies by appellate circuit. Can you imagine having a government argued different standard of review for race? That a law in the 5th circuit is subject to strict scrutiny, but in the 8th, it should be analyzed under rational basis? Adam B pointed this out and I agree they need to be consistent across all circuits with the standard they argue. It looks like they are moving that way, but aren't close to that based on the filings that have happened since the DOMA announcement (e.g. the Golinski & DADT cases in the 9th).
The change in position on the constitutionality of DOMA also shows that the activists have been right on this issue, that there is no requirement to defend an unconstitutional law. While the Supreme Court is the ultimate arbiter of the constitutionality of laws in this country, their interpretive power is not exclusive. In fact the interpretive power isn't exclusive to the judiciary. It isn't exclusive to government officials. It is the duty of every American citizen and any person subject to the jurisdiction of the United States. Until a court says otherwise, we and government officials, the President especially, are free to give any reasonable construction and interpretation to the law they deem appropriate. See a interesting and relevant discussion on this re: the powers of the President in the famous Youngstown Steel case.
The boldness of this change in heart on DOMA, is slightly blunted by the fact that the Republican takeover of the House made it politically easier to do, that by throwing responsibility for defending the law and the unreasonable, faulty arguments that necessarily follow from defending the indefensible, to the Republican House. He could have just as easily done that in 2009. I'm sure Speaker Pelosi would have been more than happy to allow a vote authorizing members of Congress to defend the law if they so choose, respecting that they should have that right. Obama does get points taken off for this move being done for political reasons and not solely for it being the correct, just and moral decision made in a timely fashion, but certainly not much, because as I said, this is potentially the most important move in the history of LGBT rights in this country.
But it still isn't enough. One miscue I didn't mention above, the one that now stands as the doozie among Obama's gaffes in his relationship with the LGBT community, the one that is most problematic and related to the DOMA issue is the President's position on marriage equality and his statement that to him marriage is between a man and a woman because "God is in the mix." The implication of that statement is that for LGBT's of faith, somehow God isn't in the mix. That at least is how they wanted the right to read that message. For the left, they want us to understand it as being that "God is in the mix" for marriage, but he can be in the mix for civil unions too. There has been a complaint that the LGBT community reads too much into Obama's statements, including this one, but that is just an excuse to get us to stop talking about it and forget it. And we can't forget it. You can't have a statement out there that was meant to convey two diametrically opposed viewpoints depending upon which viewpoint you already hold. He tried to walk a fence with that statement and managed instead to insult a substantial portion of the LGBT community. His words are too often crafted carefully to leave one impression while he reads it a different way giving him a political out if he needs it (e.g. The work with Congress on DADT line in the SOUT). And with the importance of marriage equality as a national issue rising again, the statement isn't going to go away for the 2012 election cycle regardless of what he does. One side will be using it to criticize him. The question is does he want the full support of the LGBT community or does he want to kowtow to bigots.
What it boils down to is that the President needs to stop "grappling" with his segregationist marriage stand and finish "evolving" back to the marriage equality side because "God is in the mix" just isn't going to play this time around.
The President already has the fervent support of the partisans for the next election, but he's going to have to win back the activists who have been shunned the last three years. When people close to him call us "fucking retarded", "Cheetos eating", "pajama wearing" "professional lefties", it doesn't help in engendering oneself to those you've alienated. And it doesn't help when the partisans here keep popping off that they were some how right on DADT and right on Obama's duty to defend DOMA and dismissive of the importance the activists place upon their own human rights.
I'm not saying there needs to be an apology, but maybe some sense of remorse would be nice. Anyone who wants there to be a coming together for Obama for the election needs to remember the mixed history and broken promises not just of Obama on LGBT rights, but of the party itself. We didn't get what we were promised in the 2008 election. We haven't gotten the promises of elections long before that either. We got a hate crimes act...sort of. We got a repeal that really isn't of DADT. But the other do-able priorities? The Employment Non-Discrimination Act (ENDA)? Not even a committee vote. The Domestic Partners Benefits and Obligations Act (DPBO)? No action in the Senate and no vote in the House because the administration delayed getting Congress info it wanted on the cost offsets for the benefits even though openly Lesbian Rep. Tammy Baldwin said her own private whip count of the House indicated it had the votes to pass. The Safe Schools acts (SSIA and SNDA)? No votes. The Housing Non-Discrimination Act? No votes. If Democrats want the support of the LGBT community, they have to earn it and a mixed record is hard enough to deal with to get it. But heaping invective onto those that are fighting for those rights is far from helpful.
You love the President. We get that. That's part of what makes you partisans. But you know what we love? We'd love to be able to get married and have our government recognize it. We'd love to not be fired for being transgendered, gay, lesbian or bisexual. We'd love to not get bullied and taunted at school. We'd love if our spousal/partner benefits weren't taxed as they are not taxed for opposite sex couples. We'd love it if we weren't discriminated against at public accommodations for being obviously LGBT. We'd love if our kids got the protections of having both parents recognized as parents before the law. We're fighting for principles. As activists, that's a higher priority for us than partisanship.
Simply being friends with the Democratic Party hasn't worked. The lackluster efforts of the party in 2009-2010 showed us that. As I've said before, all carrot and no stick makes for a fat donkey that doesn't move. As activists, our job is to be the stick to get the donkey moving forward. I'm not advocating an all stick approach. There are still plenty of LGBT's out there giving carrots to the party. All I'm asking for is a recognition that just because we are using a stick on the party doesn't me we don't support most of the party's candidates. We just want to see the party move in a positive direction and that will not happen without negative consequences. We need positive and negative reinforcement to push and pull the party in the right direction. So think about that the next time you feel compelled to attack activists for wanting a pony/unicorn or for being too impatient. Remember that it does not help you to attack LGBT activists. If you truly want to help Obama get re-elected, a better approach might be to ask "How can we help get Obama to the place you need for him to be?"