Box Turtle Bulletin

Another Proposal for Civil Disobedience

I am whelmed — not overwhelmed or underwhelmed — with the idea of marching on Washington. Dan Savage calls himself an “agnostic” over it — not for or against it either way. But he does have another suggestion:

Here’s the idea: one gay or lesbian couple—a couple currently denied their rights under DOMA—shows up at the entrance to the White House grounds. A different couple every day. They ask to speak to the president about DOMA. They’re refused. They sit down. They refuse to leave. They’re arrested, carried away by the police. Couples would be recruited from all over the country, demonstrating that gay marriage isn’t just an issue in liberal California or godless New England, and the media in each couple’s home city and state would be notified in advance of their arrest. The occasional famous couple—Rosie and Kelli? Ellen and Portia?—would participate to pull in celeb media. But most of the couples who come to D.C. to get arrested would be average folks. The couples would need support, legal and logistical, and we would need someone to organize media outreach and maintain a website. The website would include a photo and profile of each couple that comes to D.C. to get arrested, collect all the press, and be used to recruit couples willing to travel to D.C. and get arrested.

The action would be small scale—it would be human scale—and it would go on and on and on. It would demonstrate better than another gay march just how seriously we take this issue: we take it seriously that we’re willing to travel to D.C. and get arrested. It wouldn’t be a one-day event that the White House could ignore or bluff its way through with some lame statement about its “commitment” to ending DOMA. The couples would keep coming. Every day an arrest. Drip, drip, drip. Members of the White House press corps would see couples getting arrested every day on their way to work. Gibbs would be forced to address DOMA on a near-daily basis. The president would be asked about the issue again and again.

My boyfriend—who doesn’t do demonstrations (or interviews or photos or anything public)—is so upset about the DOMA brief that he’s willing to go to D.C. and get arrested. So am I. We can’t be the only couple that feels this way.

Baldwin, Polis Statements On DOJ’s DOMA Brief

Tammy Baldwin (D-WI) and Jared Polis (D-CO), two of the three openly gay representatives in Congress, have released statements reacting to the Justice Department’s brief defending the so-called “Defense of Marriage Act.” First up, Rep. Baldwin (no link):

Last week the Department of Justice filed a motion to dismiss a lawsuit challenging the constitutionality of DOMA.  I was profoundly disappointed by this action, particularly coming from this administration.  I still take President Obama at his word that he is committed to the repeal of DOMA.  I also recognize that he cannot do it alone.  Congress has the responsibility on its shoulders to pass legislation that would give the opportunity to the President to keep his word and ensure that all married people, including those in same-sex marriages, enjoy the same rights under federal law.”

Rep. Polis:

I was shocked and disappointed to learn that President Obama chose to defend DOMA in federal court, especially given his campaign promise to call for a full repeal of DOMA. My sadness turned to outrage when I read the Justice Department\’s brief that not only defended this hurtful law but seemed to embrace it. Comparing my loving relationship with my partner, Marlon, to incest was unconscionable coming from a president who has called for change.

Since this filing, I have called on the President to issue a statement or give any sign that would clarify his position and am disappointed in his lack of reply.

I am a proud Democrat, as are many in the GLBT community, and I believe we must hold our leaders accountable.  The Obama Administration made a HUGE mistake in the DOMA brief. If they keep making mistakes like this, they risk losing the support of the GLBT community forever, although I do not believe we are at that point yet.

President Obama needs to honor his promise to repeal this law and end its needlessly divisive and harmful impact on our nation.  I again call on him to work with us in Congress to help pass legislation, ending this hateful and divisive law.

As the New York Times editorialized yesterday, “busy calendars and political expediency are no excuse for making one group of Americans wait any longer for equal rights.”

A statement from Rep. Barney Frank (D-MA) is conspicuously missing.

If Not Now…?

As I said earlier, the age old question — If not now, when? — is no longer a rallying cry but a taunt to the Obama administration on it’s poor handling of LGBT issues. The New York Times joins the taunting with an editorial about the Obama administration’s bungling over its insulting DOMA brief:

The best approach of all would have been to make clear, even as it defends the law in court, that it is fighting for gay rights. It should work to repeal “don\’t ask, don\’t tell,” the law that bans gay men and lesbians in the military from being open about their sexuality. It should push hard for a federal law banning employment discrimination. It should also work to repeal the Defense of Marriage Act in Congress.

The administration has had its hands full with the financial crisis, health care, Guantánamo Bay and other pressing matters. In times like these, issues like repealing the marriage act can seem like a distraction — or a political liability. But busy calendars and political expediency are no excuse for making one group of Americans wait any longer for equal rights.

Rachel Maddow and Howard Dean: Obama’s DOMA Defense Is “A Huge Mistake”

LGBT Insurrection Against The Democratic Party

[Update: Three more LGBT advocates have declined to attend the DNC fundraiser in Washington next week. See below.]

President Barack Obama has repeatedly said that he won’t make a move to end “Don’t Ask, Don’t Tell,” the ban on LGBT people serving openly in the military, because ultimately it is up to Congress to change the law. His spokespeople have repeated this in answer to questions about why he hasn’t issued a stop loss order in order to halt the ongoing discharges of qualified gays and lesbians from the armed forces. They have, in effect, thrown the ball completely into the Congress’ court.

Now we have word from Senate Majority Leader Harry Reid that the reason the repeal of DADT has gone no where in the Senate is because no one has sponsored the legislation in the Senate. What’s more, he threw the hot potato right back into the President’s hands:

Senate Majority Leader Harry Reid speaking at a press conference Monday said he has no plans to introduce a bill to repeal “don’t ask, don’t tell” in the Senate.

“I haven’t identified any sponsors,” he said. “My hope is that it can be done administratively.”

A Democratic aide later clarified that Reid was speaking about the possibility of using an executive order to suspend discharges or perhaps halting enforcement of the policy by changing departmental regulations within the Department of Defense.

Which, of course, won’t happen because the President is waiting on Congress, which in turn is waiting on the President.

This shouldn’t be that hard. This isn’t 1993, when DADT was signed into law by a Democratic Congress and a Democratic President. It is now 2009, when 69% of the American public believes that DADT should be repealed. When’s the last time two-thirds of Americans were united on anything else? What’s more, even 58% of Republicans and 60% of weekly churchgoers thing it’s time for DADT to go.

With public support like this, the age old question — If now now, when? — becomes less of a rallying cry and more of a taunt. Seriously, if not now, when?  We don’t need a “fierce advocate” for this one. All we need is for someone to grow a pair — and they don’t have to be very big ones.

But that’s not likely to happen. John Berry, the White House director of the Office of Personnel Management and the highest ranking gay official in the Obama administration, spoke with the Advocate’s Kerry Eleveld about progress on LGBT rights. He predicted that the Matthew Shepard Hate Crimes bill would pass the Senate sometime this week. But what about repealing DADT and DOMA, or enacting a fully inclusive Employment Non-Description Act? Well, he says, they want to do it sometime “before the sun sets on this administration.”

This nebulous timetable is meaningless. If it doesn’t happen well before the 2010 mid-term elections, then we will be dependent on Obama winning a second term. After all, the next Presidential campaign will effectively begin in 2011. And there’s no guarantee that Obama will win that second term.

Which means either it happens now, or the Democratic party will essentially hold LGBT rights hostage for 2012.

DNC Fundraiser announcement. Click to enlarge

With that news, coupled with the recent Department of Justice brief defending the Defense of Marriage Act which insults the integrity and intelligence of LGBT people everywhere, leading LGBT Democratic political veterans are beginning to register their disgust with the Democratic Party. Heck, even the Human Rights Campaign, often derided for its soft touch with political leaders, sent a sternly worded letter to Obama concerning the DOMA brief.

Meanwile, the DNC will hold a fundraiser next week in Washington, dubbed the LGBT Leadership Council Dinner. The featured speaker at the fundraiser will be Vice President Joe Biden. Openly gay Congressional representatives Barney Frank, Tammy Baldwin, and Jared Polis will be in attendance.

But some key gay activists are beginning to turn down their invitations to this event. Confirmed now-shows so far include political strategist David Mixner and blogger Andy Towle. [Update: Additional withdrawals include Alan Van Capelle, Executive Director of the Empire State Pride Agenda and Foundation, former top Clinton administration aide Richard Socarides, and HRC National Field Director Marty Rouse] Michelangelo Signorile has suggested that we “cut off the money flow.” Sean Bugg agrees, while Mike Rogers (a.k.a. “the most feared man in Washington”) puts an even finer point on it:

As long as tens of millions are being spent by the Pentagon to enforce Don’t Ask, Don’t Tell, gays should say to politicians “you have our money, go get it back from Secretary Gates.”

More Reactions to Obama Administration’s Defense of DOMA

People are justifiably furious over the Obama administration’s DOJ brief filed with the Supreme Court defending DOMA. Here’s Pam Spaulding:

This is a President who said he is a “fierce advocate” for our rights. This doesn’t look much like an advocate, it looks more like an enemy pulling the pin on the grenade and tossing it at us. While this may not be the perfect test case for DOMA, the Obama administration, in its defense of the Act, has filed a brief that is a roadmap for every fundnut anti-gay argument against the right of same-sex couples to marry.

Andrew Sullivan:

There’s a completely decent reason to keep DOMA in place for the time being, especially in the federal courts right now – where bad precedents could wound us in the future. But to file an actual brief re-stating some of the worst and most denigrating arguments against gay civil equality is just bizarre. They could have argued for a narrow ruling or kept the “reasonable” arguments to a minimum. What they did – without any heads up to any of their gay supporters and allies – is unconscionable. Citing incest precedents? Calling gay couples free-loaders? Arguing that our civil rights are not impinged because we can marry someone of the opposite sex? Who on earth decided that that was a great idea?

…I’m baffled by this, I really am. The content of this brief is a massive political error from an administration that is making it impossible for its gay supporters to stay supportive. What’s next? A Clintonian political ad boasting of these arguments?

John Aravosis, when he’s not mad at others for not pushing the incest meme. Sorry, John. I love you and admire your work, but we disagree on that point. But not on this:

Today is the 42nd anniversary of Loving v. Virginia, the Supreme Court case overturning Virginia’s ban on inter-racial marriages. The Obama people, working for the product of an inter-racial marriage, sure have an eye for irony.

Chris Geidner at Law Dork:

Even if one argues, as I often have, that a government lawyer — from the Department of Justice to state attorneys general — must defend even those laws with which one disagrees*, such a lawyer needn\’t overstate his or her case. The government lawyer defending a statute with which she disagrees needn\’t add gratuitous demeaning statements into the legal brief she files.

Unlike the Obama Administration\’s brief filed in the Don\’t Ask, Don\’t Tell case turned away by the Supreme Court this week, last night\’s filing in Smelt v. United States goes too far.  It\’s offensive, it\’s dismissive, it\’s demeaning and — most importantly — it\’s unnecessary.  Even if one accepts that DOJ should have filed a brief opposing this case (and the facts do suggest some legitimate questions about standing), the gratuitous language used throughout the filing goes much further than was necessary to make its case.

…Perhaps the simplest way to express my anger at this filing is to reprint what is easily the most disingenuous line of the brief, at p. 32:

DOMA does not discriminate against homosexuals in the provision of federal benefits.

Another lawyer, Dale Carpenter at the Volokh Conspiracy:

More bluntly put, the Obama DOJ is saying that DOMA doesn’t discriminate against gays and lesbians because they are free to marry people of the opposite sex. No “homosexual” is denied marriage so homosexuals qua homosexuals suffer no hardship. Gay man? Marry a woman, says the DOJ. Lesbian? There’s a nice boy across the street. It’s identical in form to the defense of Texas’s Homosexual Conduct law in Lawrence v. Texas: a law banning only gay sex doesn’t discriminate against gays because it equally forbids homosexuals and heterosexuals to have homosexual sex and because it equally allows homosexuals and heterosexuals to have heterosexual sex. This sort of formalism has incited howls of laughter over the years when made by religious conservatives. Now it’s the official constitutional position of the Obama administration.

…My point here is not to claim that the DOJ’s arguments are anti-gay, homophobic, or even wrong. Much of the brief seems right to me, or at least entirely defensible, as a matter of constitutional law. My point is only to note how much continuity there is in this instance, as in others, between the Bush and Obama administrations. In short, there’s little in this brief that could not have been endorsed by the Bush DOJ. A couple of rhetorical flourishes here and there might have been different. Perhaps a turn of phrase. But, minus some references to procreation and slippery slopes, the substance is there.

Obama says he opposes DOMA as a policy matter and wants to repeal it. Nothing in the DOJ brief prevents him from acting on that belief. He is, he says, a “fierce advocate” for gay and lesbian Americans. When does that part start?

David Link at Independent Gay Forum:

It is gratuitously insulting to lesbians and gay men, referring (unnecessarily) to same-sex marriage as a “form” of marriage, approving of congressional comparisons between same-sex marriages and loving relationships between siblings, or grandparents and grandchildren, and arguing (with a straight face, I can only assume) that discrimination against same-sex couples is rational because it saves the federal government money.  There are some respectable arguments in this motion, and this kind of disrespect is offensive.

Chris Crain:

The people in the Justice Department writing this brief made so many discredited and ridiculous arguments for DOMA, I hope these were really intended to help the court see the fallacy of DOMA to persuade the court to strike it down. Otherwise my only other conclusion is that the Obama White House has thrown us overboard.

Dan Savage:

Barack Obama’s record on gay rights so far: disturbing, unsound, false, discriminatory, damaging, nonsensical. Before today you could argue that the Obama administration was too busy with the economy and the war and health care to focus on making good on his campaign promises to gays and lesbians, that Obama simply didn’t have the time to take up our issues. But you can’t make that argument anymore. The Obama administration has the time to take up gay rights issues—but only, it seems, to do harm.

I can’t take my vote back. And I’m not sure I would if I could. But I sure as hell would like to have my money back.

And Andy Towle:

Happy Stonewall anniversary everybody!

Obama Administration Moves To Uphold DOMA Before Supreme Court

John Aravosis has finally gotten a copy of the Justice Department’s brief urging the U.S. Supreme Court to dismiss the legal challenge to the so-called “Defense of Marriage Act.” The case was brought by Arthur Smelt and Christopher Hammer, who were married in California last year.

Avarosis goes out on a few limbs in his post, claiming that the Obama administration compares same-sex marriage to incest and pedophilia, and others are blindly running with it. The problem with that is that the brief does no such thing. It does mention that different states do regulate the qualifications for marriages differently with regard to kinship or age of consent, emphasizing that some states allow some marriages while others don’t. But trying to figure out if second and first cousins or sixteen-year-olds should marry isn’t the same as pedophilia or incest as Aravosis claims. If you really want a good example of how such a comparison has been made, go back and remember Rick Warren’s comparison and his reiteration that he does see it as equivalent. The Justice Department brief is not even close to being in the same league.

Nevertheless, there is plenty to be upset about without descending into histrionics and melodrama. For example, the administration’s brief reveals one cynical reasoning behind DOMA: that Congress has a right to determine how it preserves “the scarce resources of both the federal and State governments” (i.e. they save money by denying marriage equality to same-sex couples).

It also gives a tortured reasoning as to why DOMA does not violate the Equal Protection clause of the constitution. In case the court is inclined to see gay people as a suspect class, the brief points out that DOMA doesn’t mention gay people, but simply defines the gender of those who must be recognized as married by the federal and state governments — a legal re-casting of the utterly facetious “gays can marry people of the opposite sex” argument.

And the mere fact that the Obama administration sees fit to try to justify the constitutionality of DOMA is very troubling. When Obama ran for the Democratic nomination for President, he distinguished himself from other front-runners by declaring that he was for DOMA’s full repeal. That contrasted with Sen. Hillary Clinton’s position of advocating for only partial repeal of DOMA and leaving intact the provisions allowing states to refuse to recognize same-sex marriages performed in other states. When Obama became president, the new White House web site repeated his call for repealing DOMA. But that commitment has since been quietly dropped when the web site was revamped in April.

This case, Smelt v United States, is separate from the highly publicized case of Perry v Schwarzenegger, which was brought by the two prominent lawyers Ted Olson and David Boies and funded by the American Foundation for Equal Rights. In Smelt v U.S., the plaintiffs are a married couple seeking federal recognition of their California marriage, as well as the recognition of their marriage in other states. Perry v Schwarzenegger was brought by two unmarried same-sex couples and challenges California’s ban on same-sex couples’ access to marriage. There is also another separate DOMA challenge filed by GLAD on behalf of the widower of the late openly gay Congressman Garry Studds.

Update: Want another reason to be upset about this move by the Obama administration? How about this statement from Justice Department spokesman Matt Miller:

As it generally does with existing statutes, the Justice Department is defending the law on the books in court. The president has said he wants to see a legislative repeal of the Defense of Marriage Act because it prevents LGBT couples from being granted equal rights and benefits. However, until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system.

Miller is hiding behind the fact that the administration is charged under the constitution with the duty to enforce the law. But that is not the same as saying the administration is obligated by that same constitution to defend the law in court. The constitution does no such thing. In fact, virtually every administration has gone to the courts on behalf of plaintiffs or on their own behalf seeking to strike down laws they don’t like. This is a weak statement from a meek administration.

Gibbs Ducks DOMA Question

When Barack Obama was running to capture the democratic nomination, he separated himself from the rest of the pack on gay rights with his stance on supporting the full repeal of the so-called “Defense of Marriage Act.” His main rival, then Sen. Hillary Clinton, only supported a partial repeal. She wanted to keep the provision that allowed states to refuse to recognize marriages performed in other states. Obama’s position, in contrast, was the clearest and most straightforward: repeal the whole thing.

What a difference a year makes. When asked by Advocate reporter Kerry Eleveld about the administrations plans to repeal DOMA, Press Secretary Robert Gibbs essentially refused to answer.

When Obama took office, the new White House web site included Obama’s pledge to fully repeal DOMA as one of his eight principal components to his LGBT Civil Rights agenda. His web site today contains no mention of DOMA whatsoever. Meanwhile four (and soon five) states have made marriage equality a part of their laws. These historic events continue to go virtually unnoticed by this White House.

Obama’s “Don’t Ask, Don’t Tell” On Marriage

When Pres. Barack Obama tried to quell the outrage over selecting Saddleback pastor Rick Warren to give the invocation at the Inauguration, Obama promised to be a “fierce advocate of equality for gay and Lesbian Americans.” But lately he hasn’t been so fierce. Obama has backtracked on his promise to repeal Don’t Ask, Don’t Tell, and a recent re-vamping of the White House web site on Civil Rights has dropped all mention of repealing the so-called Defense of Marriage Act (DOMA).

The silence on DOMA is particularly strange because during the Democratic primaries he used his stance on DOMA’s full repeal to distinguish himself from then-Sen. Hillary Clinton. She wanted to retain the provisions permitting states to refuse recognition of same-sex marriages performed in other states. He campaigned on its full repeal.

But since then, Obama has clammed up altogether as a number of states have taken action to recognize same-sex marriage. Iowa, Vermont, Connecticut, Maine, and possible New Hampshire — that’s quite a remarkable procession in just a few short weeks. It’s hard to imagine such a remarkable series of developments go unnoticed. But the phrase “Don’t Ask, Don’t Tell” is quickly becoming an apt description for the White House’s approach to marriage:

White House press secretary Robert Gibbs was asked during the press briefing Wednesday if President Obama had any reaction to same-sex marriage becoming legal in Maine.

… Jake Tapper (The Advocate): Does the President or the White House have a reaction to the Governor of Maine signing a same-sex marriage bill?

Robert Gibbs: No, I think the President’s position on same-sex marriages has been talked about and discussed.

Tapper: He opposes same-sex marriage.

Gibbs: He supports civil unions.

Tapper: Does that mean that he’s going to say or do anything against what the citizens of Maine —

Gibbs: Not that I’m aware of. I think the President believes this is an issue that’s best addressed by the states.

This silence over marriage is just one example of Obama’s timidity where LGBT civil rights are concerned. Richard Socarides, who served as a Clinton White House staffer from 1991 to 1993 and was openly gay at the time, wrote in an op-ed in the Washington Post over the weekend asking what happened to our “fierce defender”?

I understand that the president has his hands full saving the economy. But across a broad spectrum of issues — including women’s rights, stem cell research and relations with Cuba — the Obama administration has shown a willingness to exploit this change moment to bring about dramatic reform.

So why not on gay rights? Where is our New Deal?

It is the memory of 1993’s gays-in-the-military debacle (and a desire never to repeat it) that has both the president’s advisers and policy advocates holding back, waiting for some magical “right time” to move boldly.

This is a bad strategy. President Obama will never have more political capital than he has now, and there will never be a better political environment to capitalize on. People are distracted by the economy and war, and they are unlikely to get stirred up by the right-wing rhetoric that has doomed efforts in the past.

The White House did release a statement urging passage of the Matthew Shepard Hate Crimes Prevention Act, and that is not something that should go unnoticed. But Obama’s timidity on the more substantive gay issues is now getting noticed outside the gay press and blogosphere. The New York Times has noticed his absence today — and brought out a key inconsistency on his stance toward marriage:

Anything substantive he might say on same-sex marriage — after the Iowa ruling, the White House put out a statement saying the president “respects the decision” — would be endlessly parsed. If Mr. Obama were to embrace same-sex marriage, he would be seen as reversing a campaign position and alienating some moderate and religious voters he has courted.

…Mr. Obama supports a legislative repeal of the Defense of Marriage Act, the 1996 law that said states need not recognize same-sex marriages performed in other states. Opponents of same-sex marriage say that is an inconsistency.

Opponents aren’t the only ones who see this as an inconsistency. Your humble scribe does so as well. And with DOMA being deep-sixed from the White House Civil Rights web stite, my willingness to give Obama the benefit of the doubt shrinks proportionately.

In the past several weeks, there has been a remarkable sea-change on marriage equality. Four (possibly five) states are being added to the marriage equality column. This was unimaginable just a few months ago in the wake of California’s passage of Prop 8. But these remarkable development has been utterly invisible to the White House.

Obama promised bold leadership on these issues but we haven’t seen it. How can he be bold when he’s not even bothering to catch up?

White House Changes LGBT Civil Rights Commitments On Web Site

Several readers contacted us to point out that there was a radical change to the White House’s page of Civil Rights commitments for LGBT people. Where once there was a detailed eight-point commitment to improving LGBT rights in America, there is now only this three paragraph statement:

CIVIL RIGHTS
Progress

• The President signed the Lilly Ledbetter Fair Pay Act, restoring basic protections against pay discrimination for women and other workers.

President Obama recognizes that our civil rights laws and principles are at the core of our nation. He has spent much of his career fighting to strengthen civil rights – as a community organizer, civil rights lawyer, Illinois State Senator, U.S. Senator, and now as President. He knows that our country grows stronger when all Americans have access to opportunity and are able to participate fully in our economy.

Strengthen Anti-Discrimination Laws
On January 29, 2009, President Obama signed the Lilly Ledbetter Fair Pay Restoration Act to ensure that all Americans receive equal pay for equal work. The President is committed to expanding funding for the Justice Department\’s Civil Rights Division to ensure that voting rights are protected and Americans do not suffer from increased discrimination during a time of economic distress. President Obama also continues to support the Employment Non-Discrimination Act and believes that our anti-discrimination employment laws should be expanded to include sexual orientation and gender identity. He supports full civil unions and federal rights for LGBT couples and opposes a constitutional ban on same-sex marriage. He supports changing Don\’t Ask Don\’t Tell in a sensible way that strengthens our armed forces and our national security, and also believes that we must ensure adoption rights for all couples and individuals, regardless of their sexual orientation.

Lead Criminal Justice Reform
The President will lead the fight to build a more fair and equitable criminal justice system. He will seek to strengthen federal hate crime legislation and will work to ensure that federal law enforcement agencies do not resort to racial profiling. He supports funding for drug courts, giving first-time, non-violent offenders a chance to serve their sentence, if appropriate, in drug rehabilitation programs that have proven to work better than prison terms in changing behavior. President Obama will also improve ex-offender employment and job retention strategies, substance abuse treatment, and mental health counseling so ex-offenders can successfully re-join society.

On Inauguration Day, we were pleasantly surprised to see a much more comprehensive list of objectives. The latest updates represent a deep dissapointment. Missing from the new page is any mention of promoting meaningful AIDS prevention and the enactment of the Microbicides Development Act to empower women to prevent the spread of HIV/AIDS. The latter, strictly speaking, isn’t necessarily an LGBT issue. But given all that we’ve been through the past quarter century, I think it’s safe to say that the LGBT community is very sensitive to how HIV/AIDS affects everyone. And given the neglect from many previous administrations to domestic HIV/AIDS initiatives, many in the LGBT community look at commitments like this as a possible bellwether.

Also gone from the web page is Obama’s campaign promise to repeal the so-called “Defense of Marriage Act.” This was one area in which then-Sen. Obama set himself apart from Sen. Hillary Clinton during the race to capture the Democratic nomination. Obama was among the few who called for the full repeal of DOMA. Sen. Clinton, for example, only advocated a partial repeal. Seeing DOMA missing altogether from the re-vamped web site is particularly disturbing.

And then there’s the mention of “changing Don’t Ask, Don’t Tell in a sensible way.” That looks like a clear backtrack from his earlier promise to repeal “Don’t Ask, Don’t Tell.” This critical change only serves to reinforce growing suspicions that the administration is backing away from this important, high-profile promise. [Update: The line has now been changed to “He supports repealing Don\’t Ask Don\’t Tell in a sensible way…”]

It’s unclear how much of this represents a genuine policy shift, or just a reshuffling of the web site’s focus. A letter sent to Joe.My.God suggests the latter. But whatever the case may be, we will continue to hold the Obama administration accountable to the promises he made throughout his campaign and confirmed on Inauguration Day. In case there’s any confusion as to what was originally promised, I’ve reproduced those original commitments below.

Support for the LGBT Community

“While we have come a long way since the Stonewall riots in 1969, we still have a lot of work to do. Too often, the issue of LGBT rights is exploited by those seeking to divide us. But at its core, this issue is about who we are as Americans. It’s about whether this nation is going to live up to its founding promise of equality by treating all its citizens with dignity and respect.”

— Barack Obama, June 1, 2007

Expand Hate Crimes Statutes: In 2004, crimes against LGBT Americans constituted the third-highest category of hate crime reported and made up more than 15 percent of such crimes. President Obama cosponsored legislation that would expand federal jurisdiction to include violent hate crimes perpetrated because of race, color, religion, national origin, sexual orientation, gender identity, or physical disability. As a state senator, President Obama passed tough legislation that made hate crimes and conspiracy to commit them against the law.

Fight Workplace Discrimination: President Obama supports the Employment Non-Discrimination Act, and believes that our anti-discrimination employment laws should be expanded to include sexual orientation and gender identity. While an increasing number of employers have extended benefits to their employees’ domestic partners, discrimination based on sexual orientation in the workplace occurs with no federal legal remedy. The President also sponsored legislation in the Illinois State Senate that would ban employment discrimination on the basis of sexual orientation.

Support Full Civil Unions and Federal Rights for LGBT Couples: President Obama supports full civil unions that give same-sex couples legal rights and privileges equal to those of married couples. Obama also believes we need to repeal the Defense of Marriage Act and enact legislation that would ensure that the 1,100+ federal legal rights and benefits currently provided on the basis of marital status are extended to same-sex couples in civil unions and other legally-recognized unions. These rights and benefits include the right to assist a loved one in times of emergency, the right to equal health insurance and other employment benefits, and property rights.

Oppose a Constitutional Ban on Same-Sex Marriage: President Obama voted against the Federal Marriage Amendment in 2006 which would have defined marriage as between a man and a woman and prevented judicial extension of marriage-like rights to same-sex or other unmarried couples.

Repeal Don’t Ask-Don’t Tell: President Obama agrees with former Chairman of the Joint Chiefs of Staff John Shalikashvili and other military experts that we need to repeal the “don’t ask, don’t tell” policy. The key test for military service should be patriotism, a sense of duty, and a willingness to serve. Discrimination should be prohibited. The U.S. government has spent millions of dollars replacing troops kicked out of the military because of their sexual orientation. Additionally, more than 300 language experts have been fired under this policy, including more than 50 who are fluent in Arabic. The President will work with military leaders to repeal the current policy and ensure it helps accomplish our national defense goals.

Expand Adoption Rights: President Obama believes that we must ensure adoption rights for all couples and individuals, regardless of their sexual orientation. He thinks that a child will benefit from a healthy and loving home, whether the parents are gay or not.

Promote AIDS Prevention: In the first year of his presidency, President Obama will develop and begin to implement a comprehensive national HIV/AIDS strategy that includes all federal agencies. The strategy will be designed to reduce HIV infections, increase access to care and reduce HIV-related health disparities. The President will support common sense approaches including age-appropriate sex education that includes information about contraception, combating infection within our prison population through education and contraception, and distributing contraceptives through our public health system. The President also supports lifting the federal ban on needle exchange, which could dramatically reduce rates of infection among drug users. President Obama has also been willing to confront the stigma — too often tied to homophobia — that continues to surround HIV/AIDS.

Empower Women to Prevent HIV/AIDS: In the United States, the percentage of women diagnosed with AIDS has quadrupled over the last 20 years. Today, women account for more than one quarter of all new HIV/AIDS diagnoses. President Obama introduced the Microbicide Development Act, which will accelerate the development of products that empower women in the battle against AIDS. Microbicides are a class of products currently under development that women apply topically to prevent transmission of HIV and other infections.

The Homosexual Agenda: What’s Next?

So we have a new Congress and a new President, with both branches of government held by Democrats. For some of us, this is a dream come true. After eight years of a hostile administration and more than a decade of a hostile Congress, it would appear that this is our best chance to advance several issues which are important to the LGBT community.

Of course, this setup has disappointed us before. A similar arrangement in 1993 brought us Don’t Ask, Don’t Tell.

But things just might be different this time. During this presidential campaign, President-elect Barack Obama included four specific LGBT issues among his campaign promises:

• Full repeal of the Defense of Marriage Act (DOMA)
• Passage of the Matthew Shepard Hate Crimes Act
• Passage of the Employment Non-Discrimination Act (ENDA)
• Repeal of Don’t Ask, Don’t Tell (DADT), the ban on gays serving in the military.

So, what’s really on tap for 2009?

We’ve been focused so much on marriage amendments the past several months that the DOMA is probably topmost in our minds right now. Timothy offered some possibilities and alternatives for repealing all or parts of the DOMA. As he pointed out, all of those options are problematic.

I personally don’t see DOMA going away anytime soon. Just because it’s foremost in our thoughts right at the moment doesn’t mean it will necessarily be the top of the “agenda” in January.

But we have seen considerable momentum building on the other issues. In the past two years, we saw movement on the Matthew Shepard Hate Crimes Act and the ENDA. Unfortunately, that ENDA was the non-inclusive variety, and the resulting dissention among LGBT advocates ultimately doomed ENDA’s passage.

We also saw Congressional hearings on repealing Don’t Ask, Don’t Tell, although that hasn’t translated yet into legislative action. Nevertheless, the groundwork has been laid for DADT going the way of the dodo bird and polar icecaps.

The top LGBT priorities for 2009 will be driven by what is politically possible. In the current climate, I think Hate Crimes and repealing DADT are doable. ENDA is achievable as well, but only if we get our own act together and get behind a fully inclusive one. Otherwise, we’ll suffer the same division and acrimony as we did the last go-round, with the same result.

Besides those three items, there are some other opportunities as well. The new administration will almost certainly lift the HIV traveler’s ban after Congress repealed the 1993 law which mandated it. That law was one of Sen. Jesse Helms’s great legacies. The Bush administration signed the repeal, but it has so far failed to follow up by actually rescinding the ban. That unfinished business will be left for the next administration

We might also realize other important gains as well, like support for honest reality-based HIV prevention programs that rely on something more realistic than abstinence until marriage — especially when marriage continues to be pushed out of reach for so many gays and lesbians.

And that brings us back to DOMA. And unfortunately, DOMA is probably off the table. With the passage of three new marriage amendments in Florida, Arizona and California, there will be few legislators on Capital Hill willing to put much effort into something their own constituents voted against back home. In a stretch, we might be able to add some domestic partnership benefits for federal employees, but I’m afraid DOMA itself will probably be around for quite some time to come.

Looking Forward: DOMA

Going into this next administration, the country will have a strong Democratic majority in the Senate and the House of Representatives. Although there are seats as yet undecided, it’s possible that Democrats will have a filibuster-proof majority in the Senate.

The country will also have a president that has verbalized commitments to the gay community. And one of those commitments was the revokation of the Defense of Marriage Act.

Considering that the voters of California seem to have rejected marriage equality, I am not at all certain that the Obama administration will have overturning DOMA as a priority any time soon. It may well be that this election will be viewed as a referrendum on issues of gay equality, especially among the President-elect’s strongest support demographic, and that “the people” have spoken in favor of discrimination. And Barrack Obama, as a candidate, did not (to my satisfaction) demonstrate an unwaivering dedication to the goals of the gay community.

Further, we cannot assume that Democratic affiliation equates to support for marriage equality. For example, the newly elected Udall cousins in Colorado and New Mexico may adhere to the Mormon Church’s anti-gay position on the issue.

However, let’s assume that at some point within the next four years or so Congress and/or the President will address DOMA.

First, I should state that I find it entirely unlikely that both provisions of DOMA will be reversed. DOMA was constructed to do two things: to protect states from the marriage laws of their neighbors, and to deny any federal marriage benefits to gay couples. Pragmatically, there just aren’t many Senators or Representatives of either party that are going to want to pass legislation requiring Alabama and Alaska to recognize the same-sex marriages of Massachusetts or Connecticut. That provision isn’t going away any time soon.

But they may well try to provide some federal benefits for same-sex couples. As I see it, there are several responses that could be crafted.

States Rights – The federal government could just lift the ban on federal recognition and leave it up to each state to decide what will be recognized as marriage. Ironically, this might have had greater appeal to John McCain than to President-elect Obama.

Such a direction would likely result in some upper East Coast states in converting their civil unions or in passing new marriage legislation. Likely New York, New Jersey, Vermont, Maine, New Hampshire, and Rhode Island would shortly join Connecticut and Massachusetts in providing for same-sex marriage.

However, those states with anti-marriage constitutional amendments such as California and Oregon would see no recognition for their relationships. While this might eventually serve as impetus to overturn the discriminatory amendments, this would not be a quick or easy process and many couples would continue to be denied rights for quite some time.

Alternately, they could recognize marriages that states recognize and also allow states to assign other arrangements – such as civil unions or domestic partnerships – the status of federal recognition.

Civil Unions – The federal government could create a new federally-recognized relationship status and grant it equal benefits to marriage. This is likely to appeal to many Democrats that want to provide equality but fear public response and is the official position of President-elect Obama as well as many Democratic legislators.

This would be beneficial to gay couples from those states that have no recognition or rights whatsoever. And it may well serve as a way to shame those states that do not have amendments barring couple recognition to provide civil union rights on a state level.

Such a step would probably provide the greatest good in the short term but it may delay our quest for marriage equality. This may seem “good enough” for gay couples and could result in a greatly lengthened tiered status.

Additionally, I just don’t think there are adequate votes at present to accomplish this step.

Reciprocal Rights – The federal government could leave DOMA in place and instead allow certain rights and benefits to be granted to any one other person that a citizen might select, be they spouse, partner, brother, or neighbor. This is the preferred status of homophobes when the electorate is against them – it allows the impression of compassion while adamantly denying that gay people form enduring and important relationships.

In the short term this might benefit some gay couples with some few rights, but in the long run it might serve to further delay equality.

Such a direction would, in my opinion, be demeaning to the relationships of couples, both gay and straight. It denies the union of the two into one and instead doles out rights based on proof of need. Thereafter, there is no assumption that rights given to marriages should be considered exclusionary if they aren’t given to gay couples because it denies the existence of gay couples at all.

Piecemeal Rights – The federal government could leave DOMA in place and instead address specific rights such as immigration or social security. Those couples who register – showing some evidence of interdependance – could have some few rights granted to same-sex married couples – irrespective of their state status. This is by far the most likely scenario, I believe.

Like the civil unions option, this would have an immediate and direct effect on gay couples from all states. This approach is likely to be incremental, starting with partner immigration in the near future (a bill has been crafted in past sessions of Congress). This is also likely to gain limited bi-partisan support.

It is likely that eventually most rights granted to opposite-sex couples would be granted to same-sex couples. And we can dream of the day in which the federal government will recognize marriage of all of its citizens without assigning second-class citizenship to its gay children.

Bill Clinton Opposes Prop 8

On September 21, 1996, President Bill Clinton signed the so-called “Defense of Marriage Act” (DOMA) into law. He then promptly turned around and bought radio ads on Christian radio stations to brag about it during his re-election campaign against Sen. Bob Dole. That betrayal has been a huge source of anger and resentment in the LGBT community towards Clinton ever since then.

This week, the former president made a very big step in making up for that. In a telephone call to California voters yesterday, President Clinton delivered the following message:

“This is Bill Clinton calling to ask you to vote NO on Proposition 8 on Tuesday, November 4th. Proposition 8 would use state law to single out one group of Californians to be treated differently — discriminating against members of our family, our friends and our co-workers.

“If I know one thing about California, I know that is not what you’re about. That is not what America is about. Please vote NO on 8. It’s unfair and it’s wrong. Thank you.”

Former Rep. Bob Barr: DOMA “Clubs Down Rights of Law-Abiding Americans”

Former Rep. Bob Barr (R-Ga) authored the Defense of Marriage Act (DOMA) which Pres. Bill Clinton signed into law in 1996. Today, Barr is now the Libertarian Party’s presidential nominee. Speaking at the convention, Barr apologized for his role in further institutionalizing discrimination into American law:

Click here to read the transcript

Why Marriage Matters

Brazzil Magazine has a story about a married couple treated in an abhorrent manner:

Timothy J. Coco and Genésio J. Oliveira Jr. were forcibly separated last August when the U.S. Department of Homeland Security (DHS) ordered Oliveira to leave the country after a five-year battle to obtain legal status.

Though they are legally married in Massachusetts, the State Department treats gay couples with contempt. The Defense of Marriage Act of 1996 declared that the federal government would discard 200 years of state-defined marriage precedent and recognize only those state-sanctioned marriages that are between a man and a woman.

But anti-gays should walk cautiously.

Separation from one’s loved ones is a fear that lies deep within us all. Indeed, the images of husbands and wives being driven away from each other was a powerful weapon in the hands of those who fought against the evil of American slavery. And as more people find empathy with their gay friends and neighbors, the forced separation of married couples begins to appear as the behavior of villains and a tyrants.

So I warn the bigots and homophobes: In your drive to “protect marriage”, you are behaving abominably and without restraint. But some day decent people will see one of your acts of inhumanity and say, “No more!”

And it may well be the forced separation of legally married persons that tips the scales.