by Eric Rader
Since President Obama took office 25 months ago, some in the LGBT community have complained about his administration's slow progress in fulfilling his campaign pledges on issues of equality. The president, however, did use his executive powers to extend legal protections to LGBTs during his first two years in office. He also has named a number of openly gay and lesbian individuals to positions of influence at the White House. Just last week, the administration announced that Jeremy Bernard will be the first man and first openly-gay person to serve as White House Social Secretary, the position responsible for organizing state dinners and other social events at the executive mansion.
However, many people have pointed to slow progress on other substantive concerns and have suggested that the president should move more aggressively to protect LGBTs from discrimination.
Over the past several months, President Obama has taken a number of steps to indicate that he truly does believe in equality for our community. First, in late December as the Democrats' majority in the U.S. House of Representatives was nearing its end, the president and Congress repealed the discriminatory "Don't Ask, Don't Tell" law on military service. Now, the Obama administration is moving more quickly on another priority of the LGBT community and one of the president's promises during the 2008 campaign: Repeal of the so-called "Defense of Marriage Act."
This highly discriminatory law was passed by a Republican Congress and signed into law by President Bill Clinton during the presidential election year of 1996. The legislation was approved when same-sex marriage was not legal in any state, though Hawaii was considering a gay marriage measure at the time. Now five states and the District of Columbia permit same-sex marriage, and other states have civil union laws in place. DOMA prevents the federal government from offering legal benefits to the same-sex spouses or partners of federal employees, allows states to refuse to recognize gay marriages performed in other states, and denies federal tax benefits to same-sex couples, and contains other discriminatory provisions.
During his 2008 campaign for president, Obama proclaimed his desire to see DOMA repealed. However, Congress did not take action on this issue during the president's first two years in office. At the same time, federal lawsuits challenging the law were working their way through the courts. Last year, a district court in Massachusetts struck down DOMA as a violation of the equal protection clause of the 14th Amendment to the U.S. Constitution. The Obama administration defended the law in court on the grounds that it has a legal responsibility to defend federal statutes, even when the president himself opposes them. In the Massachusetts case, the court used a standard of review that simply required the president's lawyers to justify passage of the original DOMA legislation as a reasonable use of congressional power, though the court found that DOMA violated even this minimal test of equality. In more recent lawsuits, the Obama administration had to decide on a legal strategy to use in federal courts where no established standard of review existed for classifications based on sexual orientation. This left the president in the position of having to support a law in court that he knew discriminated unjustly against a specific category of citizens.
Last week, President Obama ordered his legal team to stop defending DOMA. The president has now officially stated his view that the law is unconstitutional, and that courts should use a tough legal test known as "strict scrutiny" when reviewing laws that classify people based on sexual orientation. This standard would place gays and lesbians in a protected category under equal protection analysis, akin to the status of women and racial and ethnic minorities in other civil rights cases. Obama's decision is a huge development for the LGBT community, because the president now regards sexual orientation (and we would hope gender identity, too) as deserving of federal legal protection.
Now that the Obama administration has stopped defending DOMA, some members of Congress may try to step into the legal void. House Speaker John Boehner, R-Ohio, and other Republican leaders spoke out against Obama's decision last week and may try to mount a constitutional defense of discrimination. It is important that those who support President Obama's decision make themselves heard on this issue. DOMA is constitutionally indefensible, as the president has now recognized. In 2011, a majority of the American people and our president believe in equality for all people, including LGBTs. It is now time for Republicans to stop using gay marriage as a wedge issue and let DOMA die.
HRC page with letter to send your member of Congress about DOMA:
http://tinyurl.com/49umrzm
Find your House member:
http://www.house.gov
Justice Department press release on the president's DOMA decision:
http://tinyurl.com/4z5engk
