The week of LGBT betrayals

October 18, 2010

Just when you thought the Obama administration's attitude on LGBT equality couldn't get any worse, the Justice Department strikes again. Gary Lapon reports.

THE OBAMA administration sprang into action last week to block LGBT rights--a stark contrast to its snail's pace when it comes to any initiative to promote equality and justice for lesbian, gay, bisexual and transgender people.

On October 12, the Justice Department announced it would appeal a decision by a federal judge that declared the Defense of Marriage Act (DOMA) unconstitutional because of its denial of benefits to same-sex couples married in Massachusetts.

DOMA was passed by a Republican Congress and signed into law by Democratic President Bill Clinton. It defines marriage as between one man and one woman, denies married same-sex couples over 1,100 federal benefits granted to heterosexual couples, and permits states to ignore same-sex marriages performed in other states.

As a candidate in 2008, Barack Obama said he considered DOMA to constitute unjust discrimination and promised to work toward the law's repeal. Yet this isn't even the first time the Obama administration has defended DOMA in federal court.

Attorney General Eric Holder with President Barack Obama
Attorney General Eric Holder with President Barack Obama

In June 2009--within days of Obama declaring the first LGBT Pride Month of his presidency--Justice Department lawyers responded to a legal challenge to DOMA by arguing that the law was constitutional and non-discriminatory. As precedents, it cited laws that barred marriage in cases of incest and pedophilia.

Last week, the administration heaped more insult on injury when the Justice Department appealed another court ruling that was positive for LGBT rights--a September 9 decision by federal judge Virginia Phillips of California, who ruled the U.S. military's "don't ask, don't tell" (DADT) policy unconstitutional.

A month after issuing the decision, Phillips ordered the military to end any investigations or discharges related to "don't ask, don't tell." The Justice Department responded with an appeal and a request for Phillips' order to be stayed--in other words, a green light for discharges and inquiries to go ahead.

DADT was also instituted by Bill Clinton and bars LGBT people from serving in the military if they are open about their sexual orientation. More than 13,000 veterans have been discharged under the policy since 1993, most losing their benefits in the process.

The administration's hypocrisy on "don't ask, don't tell" was on full display. White House Press Secretary Robert Gibbs told reporters that President Obama "strongly believes that this policy is unjust [and that DADT] should end. We have to figure out an orderly way for it to end...that's consistent with our obligations in fighting two wars."

IF BARACK Obama and the Democratic Party he leads were truly the champions of LGBT equality they have so often claimed to be, they would have kept their promises and put an end to DOMA and DADT long ago.

But even setting aside the broken promises over the longer term, the Justice Department's actions last week are a slap in the face.

No one is "forcing"--as White House officials implied--the administration to appeal the decisions that declare DOMA and DADT unconstitutional. As columnist Dan Savage pointed out on his blog, the Justice Department under Bill Clinton declined to appeal a 1996 decision that overruled a ban on HIV-positive people from serving in the military.

The Democrats have a 75-seat majority in the House of Representatives, and an 18-seat edge in the Senate--they even had a filibuster-proof 60-seat supermajority in the Senate for most of last year. Plus Obama began his term in office riding a wave of historic enthusiasm and voter turnout, especially from young people and people of color demanding change after eight years of George W. Bush.

But in almost two years, the Democrats have done next to nothing to honor their promises on LGBT rights.

In fact, even in the lead-up to the 2008 election, there were hints of the betrayals and hypocrisy to come. Then-candidate Obama, while opposing California's Proposition 8 to overturn same-sex marriage, insisted that he believed "marriage is between a man and woman and I am not in favor of gay marriage."

Once in office, Obama dragged his feet on repealing DOMA and allowed the Pentagon to continue to discharge gay, lesbian and bisexual soldiers under "don't ask, don't tell." On top of that, despite months of promising a vote on the Employment Non-Discrimination Act (ENDA), which would have banned workplace discrimination against LGBT people, Democrats allowed the bill to die in committee yet again.

All this is despite a recent Associated Press-GfK poll showing that a majority of people support the right to same-sex marriage--a first--and numerous polls showing more than 75 percent of people, including large majorities of Republicans, support LGBT people serving openly in the military. Nearly 90 percent of people support ENDA, according to polls--even 77 percent of Republicans oppose employment discrimination on the basis of sexual orientation.

As commander-in-chief of the armed forces, Obama could have put an end to discharges under DADT by executive order. Instead, the House voted in May to attach repeal to the 2011 defense spending bill, which spurred a Republican filibuster spearheaded by Sen. John McCain. The defense bill never came to a vote in the Senate.

The language of the House amendment calls for repealing DADT after the end of a Pentagon study supposedly aimed at assessing the impact of dropping the policy. The study is an insult, amounting to an invitation for anti-gay troops to weigh in on a civil rights question that should not be up for debate in the first place. As James Withers pointed out at 365Gay:

The irony is that DADT is still the law of the land, but the very soldiers most severely impacted by the policy have no right [to] talk. No one is keeping gay grunts from speaking up at town hall meetings, but coming out will lead to dismissal. So an up-and-down study of what it means to have out gay troops has no gay troops publicly and honestly talking (unless they want to get booted).

On top of that, the repeal was attached to a bloated military budget at a time when the U.S. is engaged in multiple unjust wars and occupations, while millions suffer unemployment and cuts to the social safety net at home--a cynical attempt to pit the LGBT civil rights movement against antiwar forces.

As columnist Sherry Wolf pointed out on her blog: "We are equal and must start being treated that way legally. While politicians of both parties treat our rights as if they are playthings, we don't need to act as if theirs is a sane strategy."

ONE MORE sign of how low the Obama administration has sunk: By appealing decisions that would have overturned DOMA and DADT, the Obama administration has been outflanked on LGBT rights by Republicans--such as California Gov. Arnold Schwarzenegger, who in September refused to appeal a federal ruling overturning Prop 8, and members of the Log Cabin Republicans, a gay GOP group whose challenge of DADT in the courts led to Phillips' decision.

Hell, even Dick Cheney now supports same-sex marriage!

With the administration's appeals to block court rulings in favor of LGBT civil rights and with Congress refusing to pass pro-gay legislation, it's clear who's standing in the way of progress toward LGBT equality--Obama and the Democratic-controlled House and Senate.

When Robert Gibbs says that "we have to figure out an orderly way for [DADT] to end," it's obvious that the Obama administration is telling LGBT people to wait for their rights.

We should remember the words of Dr. Martin Luther King, Jr. in his "Letter from Birmingham Jail": "For years now I have heard the word 'Wait!' It rings in the ear of every Negro with piercing familiarity. This 'Wait' has almost always meant 'Never.' We must come to see, with one of our distinguished jurists, that justice too long delayed is justice denied."

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