Obama is not an LGBT ally

June 7, 2012

IN RESPONSE to "Unfair to Obama on LGBT rights": Jay D. Stephens is correct to point out that Barack Obama, albeit through his North Carolina campaign spokesperson, released a statement on Friday, March 16, saying he was against Amendment One. We should have acknowledged this in our article "What took him so long?"

However, I don't think this oversight significantly impacts the point being made in the article, as Stephens acknowledges.

As far as the claim that Obama's Department of Justice (DOJ) defended the Defense of Marriage Act (DOMA) because "the executive branch is required by the Constitution and by federal law to defend federal laws to a point," this is misleading at best.

First of all, the Politico.com article Stephens quotes says that the DOJ, as an excuse for why they defended DOMA and "don't ask, don't tell," claimed to be bound by "tradition," not by law. In fact, the president is not required to defend or enforce laws that his administration determines are unconstitutional, as the Constitution is supposed to take precedence over any law passed by Congress.

Obama, famously a constitutional law scholar, lagged behind U.S. District Court Judge Joseph Tauro in making the determination that Section 3 of DOMA, which defines marriage as between a man and a woman and denies same-sex married couples federal benefits or recognition, is unconstitutional.

And although Obama finally instructed the DOJ last year not to defend Section 3 of DOMA in court, he also instructed the executive branch to continue to enforce it. This is in line with his contradictory position on same-sex marriage: that he "personally" supports it, but that it should be up to states to decide.

He has yet to hold that equality for LGBT people is a question of fundamental civil rights, akin to those won for racial minorities by the African American civil rights movement.

Obama has yet to take the position, which he is within his powers to take, that LGBT people should be afforded civil rights protections, and that to deny them equal treatment under the law is unconstitutional, and therefore unenforceable. He could take this position and cease to defend or enforce DOMA as unconstitutional, and he deserves to be condemned for this failure.

The same argument applies to Obama's foot-dragging on "don't ask, don't tell." In addition, Obama, like George W. Bush and other presidents before him, has routinely utilized "signing statements" allowing him to disregard aspects of laws passed by Congress. That he hasn't done the same with DOMA and didn't with DADT is on him, and cannot be explained away or excused by saying that he was simply following the law.

Also, the idea that it would be politically dangerous for Obama to take action against "don't ask, don't tell" is not only not a valid excuse to drag one's feet on an issue of civil rights, but it's also a dubious claim, given that three-fourths of the population supported repeal at the time.

TAKING A step back, the idea that a president who has let Wall Street off the hook for massive fraud; allowed the architects and administrators of the Bush torture regime to retire in peace to their mansions; ordered the extrajudicial assassination of U.S. citizens; and claimed the right to order the bombing of Libya against the wishes of Congress; is somehow rigidly bound to specific interpretations of the Constitution or U.S. law doesn't hold water.

This is an administration that defends its assassination program by arguing that internal deliberation within the executive branch based on secret evidence counts as "due process"--an authoritarian "Judge Dredd"-style interpretation of the law.

The Obama administration, like so many before them, does not view or treat the law as a neutral thing. Rather, it is a tool wielded by the rich and powerful for the repression of the oppressed and exploited. It is ignored when it suits those guilty of massive fraud on Wall Street and the war criminals in the Pentagon, only to be trotted out as an excuse for inaction on civil rights.

We should reject these excuses and refuse to accept anything less than full LGBT equality. Ours should be a higher standard of justice than the "rule of law," which means the continued rule of those who oppress and exploit us.

As Martin Luther King, Jr. wrote in his "Letter from Birmingham Jail": "One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that 'an unjust law is no law at all.'"
Gary Lapon, New York City

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