07.13.10 11:14 PM ET
Clinton Team Attacks Obama's
Among the biggest critics of the Obama administration's approach to same-sex marriage: President Clinton's gay rights team. Linda Hirshman reports.
The Obama administration has less than 60 days to decide whether it wants to renew its vows to defend the Defense of Marriage Act. Tracy Schmaler, a spokesperson for the Justice Department, will say only that "the department is reviewing the ruling"—though an appeal is considered likely. Last Thursday, Federal District Judge Joseph Tauro ruled that the department's arguments at trial were so utterly devoid of substance that they did not even meet the low standard of any rational justification for the law—and indeed indicated that the law was simply motivated by animus toward gay and lesbian people. Now Justice has to decide whether to keep fighting.
As they contemplate what to do, the Obama administration is facing fire from an unexpected place—some of the Clinton gay-rights team, who say Obama is dragging his feet on gay rights in general and should certainly not be fighting to preserve the anti-gay legislation that Clinton himself signed into law.
“Richard has fashioned himself as a professional scold and I’ve stopped listening to him,” Raben says.
Some of the strongest criticisms of Obama's course come from Richard Socarides, the man who advised Clinton on LGBT issues—and was on the case when 42 signed the Defense of Marriage Act itself. Socarides says the Obama administration has "an opportunity to re-evaluate their legal policy in this area and chart a new course which can and should include a softening of their defense of this law. The Justice Department may decide that the arguments they've been advancing are illegitimate." They need to say, in effect, "we've changed our minds," he suggests.
Socarides proposes strong medicine for the Obama Justice Department, and he proposes that they take it now. "The Justice Department is going to have to admit that [defending the statute in the trial court] was not correct, but it's better to admit now that your original formulation was not really the right one. The stakes are going to get very high for them, and quickly," he continues, "They either can continue on this roller-coaster course which is going to end in a big crash for them... or they can re-evaluate."
But Robert Raben, a gay-rights adviser close to the Obama team, argues that the Justice Department should be defending DOMA—now and into the foreseeable future.
Raben, a lobbyist who raised money for candidate Obama, has extensive contacts with the administration, adds that, "It would be a wonderful fantasy to live in a world in which I and the people who agree with me get to decide which laws the Justice Department defends, but it's not a world I would want to live in. We have a beautiful opinion from one of the 900+ federal district judges. At some point in the very near future, a fantastic district court judge in say Jacksonville, Florida, is going to strike down health-care reform as unconstitutional and those of us on the left would be furious if the Department of Justice relied on this one judge's opinion to stop enforcing the mandates of the Health-Care Reform Act."
When confronted with the same suggestion, Socarides says, "That's part of the political process; I don't get the argument. I don't think standing on principle violates your obligation to principle. I'd argue [the president who didn't defend the health-care law] was wrong, but I wouldn't necessarily say he was acting outside his authority."
"Richard has fashioned himself as a professional scold and I've stopped listening to him," Raben says. "He loves to see his name in print criticizing an administration that has been overwhelmingly pro-gay."
Socarides surely wouldn't accept the characterization of himself as a media-hungry scold, but he says he "completely understands that people would say or think 'who does this guy think he is complaining about this when he was there when it happened.'
"But now," he explains, "15 years later our expectations are different and justifiably so. Our expectations as a community and my personal expectations have changed. My politics have changed, too. I think I've become radicalized, less willing to accept anything less than full equality."
The Obama White House might have navigated these unquestionably rough waters better if, like Bill Clinton, President Obama had formally designated a high-level White House adviser on LGBT issues (President Bush didn't, either) to whom they could channel their concerns. Obama's only "liaison" with the gay community, Brian Bond, a staffer at the Office of Public Engagement, has said nothing publicly on the DOMA appeal. The White House media office did not return phone calls asking for comment or even for the name of someone to comment.
As LGBT blogger Pam Spaulding described the situation last month, "LGBT reporters have been on the equivalent of a resource blackout with the administration to date, with no high-level policy official focused on ensuring that the wider LGBT community is informed on administration plans or strategy."
While both Raben and Socarides professed their undying affection for President Obama and their desire to see him re-elected and to see a Democratic Congress re-elected, the two are also closer than they probably realize in their annoyance with their president. When confronted with the Justice Department's specific argument for DOMA in the Massachusetts federal court—that DOMA is the best solution to a fractious social argument—Raben said, "Well, it sounds to me like the attorneys are saying the same thing the president is saying. My gay and lesbian friends on the left don't like it, but the president doesn't support gay marriage!" Raben continued, his voice rising as he contemplated the incoherence of the hostility to gay marriage from the "overwhelmingly pro-gay" Obama administration, "Is he for Massachusetts marriage? If he had been in Massachusetts would he have voted in favor of marriage or against?"
The issue isn't likely to cool down any time soon. On Tuesday, the gay Log Cabin Republicans' challenge to the constitutionality of the "Don't Ask Don't Tell" law goes to trial in federal court in Los Angeles. And even someone as sensitive to the overall constitutional order as Raben is wondering "how grown-ups can stand up and say the things" the administration's Justice Department will be articulating there.
Linda Hirshman is a retired professor of philosophy. She is the author of Get to Work: A Manifesto for Women of the World . She is writing a book about the gay revolution.