DOMA deux

The New York Times published an excellent editorial, “A Bad Call on Gay Rights”, making many of the same points on the DOMA brief that I did on Monday:

If the administration does feel compelled to defend the act, it should do so in a less hurtful way. It could have crafted its legal arguments in general terms, as a simple description of where it believes the law now stands. There was no need to resort to specious arguments and inflammatory language to impugn same-sex marriage as an institution.

Then they continue in a way I completely agree with:

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 lack of action on any of these things has led some GLBT activists to claim that they’re being “thrown under the bus”. Others counter that President Obama has a lot on his plate, as indeed he does. But the editorial concludes with a great point:

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.

I couldn't agree more, and I think this is the core of the centrist position: The administration must add its promises to GLBT Americans as part of its priorities, not leave it on the “someday, hopefully” list. However, fulfilling these promises immediately isn’t the demand—there are many more pressing problems to be dealt with. The administration must simply start making an effort.

One aspect that’s troubled me about this mess is that some GLBT folks are basically making an excuse for it because the brief was written by “a Bush/Cheney holdover who’s also a Mormon”. This defence is offensive because, first, it assumes someone being a Mormon automatically explains the anti-gay rhetoric of the brief. Without any evidence to support that, it’s guilt by association because of the Mormons’ well-known—and well-funded—opposition to any legal recognition of same-sex relationships.

But even if that was proven to be the core of the issue, so what? These briefs aren’t written by one person, labouring alone, then filing it single-handedly. Instead, there’s a whole team that has input and reviews it before, ultimately, it’s approved to be filed. That means that there were plenty of opportunities to object, but no one did (allegedly, staffers did soften the language a little and, if true, one can only imagine how horrible the original must’ve been).

So, blaming one staffer lets the others off the hook: They’re just as responsible. However, now that this has become such a big issue for us, it’s unlikely that the Department of Justice will make the same sort of mistake again, so that’s one good thing that will likely come out of this.

President Obama did not “betray” us, but one could say that his Department of Justice betrayed him by filing a brief that’s so clearly counter to administration policies and that alienates part of the president’s coalition. And that alienation is why President Obama must do better.

Update: The AP is reporting that on Wednesday the President will announce plans to "extend health care and other benefits to the gay and lesbian partners of federal employees". It's a start.

Update 2 (18/06/09): Turns out to be a teeny-tiny step: "Domestic partners of federal employees can be added to the long-term care insurance program; supervisors can also be required to allow employees to use their sick leave to take care of domestic partners and non-biological, non-adopted children. For foreign service employees… the use of medical facilities at posts abroad, medical evacuation from posts abroad, and inclusion in family size for housing allocations."

No routine healthcare or survivor benefits (like pensions). The reason is—ironically—DOMA: The very law that the administration is defending prevents them from granting full rights and recognition to same-sex couples that it does to opposite-sex married couples. This is also a memorandum, not an executive order, which carries the weight of law. A presidential memorandum expires at the end of a president's term, whereas an executive order has to be specifically cancelled by a new president. (NB: The administration disputes that distinction; I defer unless I hear a reliable dissenting interpretation).

If you use the metaphor of a long march to equality, this is the equivalent of deciding to lift the foot for a step—progress of a sort, but very slight.