12.12.12 9:45 AM ET
Obama Too Cautious on Ending Employment Bias Against LGBT Community
Last week, Chris Johnson, a reporter for the Washington Blade, asked White House spokesman Jay Carney whether President Obama might finally act on a proposal that gay activists have been pushing in recent years: an executive order blocking federal contractors from discriminating against gay and transgender employees. Carney’s response—essentially, no—received plenty of attention from gay journalists and activists, but didn’t attract much notice in the mainstream press. Which is a shame because the true question here isn’t about federal contractors, employment discrimination, or even gay rights. It’s about what kind of liberal Barack Obama is going to be during his second term.
Throughout the past four years, there often seemed to be a tension in Obama’s worldview, especially when it came to two issues—gay rights and immigration—that fall broadly under the rubric of civil rights. On one hand, the president has always talked about his commitment to making substantial progress on these fronts. Yet, at least during the initial phase of his presidency, he frequently declined to take obvious steps that were available to him on both issues. From the day he took office, Obama could have stopped discharging soldiers from the military for being gay, effectively ending “don’t ask, don’t tell” (DADT) via executive order. He could have ordered federal agents to stop deporting undocumented immigrants who were brought here by their parents, were attending college, and had no criminal record—effectively implementing the DREAM Act. And he could have ordered the Justice Department to stop defending the anti-gay Defense of Marriage Act in court.
At first, he did none of these things. On his watch, gays continued to be discharged from the military and immigrants with genuinely heartbreaking stories continued to live with the threat of deportation. Why? You could say the reason was political—that the president was afraid of moving too far to the left—and perhaps this was the case. But something else seemed to be at work: at least on these issues, Obama appeared to have a surprisingly deep attachment to process. Indeed, he sometimes seemed to place more emphasis on process than on getting his desired outcome. On DADT, Obama insisted that he didn’t have the authority to stop discharging gay soldiers in the absence of congressional support—even though numerous legal experts said he did. On immigration, the administration made the same argument, saying it couldn’t take unilateral action. On the Defense of Marriage Act, Obama insisted that the Justice Department was obligated to defend laws it didn’t like—even though there was precedent suggesting otherwise.
To many of us, Obama’s ardent attachment to process on these civil-rights issues was confusing and frustrating. It’s true that two liberal values—democratic process and civil rights—were arguably in tension. But Obama’s weighing of these competing values seemed strangely out of whack. In all three cases, the democratic-process arguments against unilateral executive action were tenuous to begin with, and when weighed against the human stakes—discharged soldiers, deported immigrants, legally married spouses unable to enjoy the federal benefits of marriage—they seemed to pale by comparison. If there were any legal ways to move forward, even incrementally, on these issues, it seemed bizarre that a liberal president wouldn’t pursue them as aggressively as possible.
Eventually, Obama did get both the process and the outcome he wanted on DADT when Congress repealed it two years into his presidency. But on the other two issues Obama at some point decided to throw process to the wind and act on his own. In early 2011 the Justice Department stopped defending the Defense of Marriage Act in court. And last summer, probably with an eye on the Latino vote, the administration reversed its previous position and effectively implemented the DREAM Act via executive order.
It was this Obama that many liberals so enthusiastically supported during the 2012 campaign: a president who was no longer going to hide behind thin arguments about process when it came to simple matters of civil rights. Yet now, having won reelection—with, it bears mentioning, a significant outpouring of support from gay voters—the Obama administration appears to be reverting to the approach of its first two years: invoking process as an excuse to avoid pushing civil rights aggressively.
This time, the subject is employment discrimination. The backstory here is the longtime failure to get a bill known as the Employment Non-Discrimination Act (ENDA) through Congress. The proposed measure would stop businesses (with more than 15 employees) from discriminating against members of the LGBT community. Even in an age when the culture appears to be turning decisively toward gay rights, there still is no federal law preventing a company from firing someone for being gay or transgender. Some states already have such laws (PDF)—16 protect employees based on sexual orientation and gender identity, 5 based only on sexual orientation—but the majority of states do not. Hence the need for a federal bill. (As welcome as such legislation would be for gays and lesbians, it might be even more important to the transgender community—a group that faces extraordinary levels of discrimination in the workplace.)
Because this bill is going nowhere in a Republican-dominated House, activists are instead asking the president to carry out a half measure: they want him to sign an executive order requiring all federal contractors to abide by a policy of nondiscrimination. This seems like a no-brainer. Yet when the subject was raised at a press conference last week, Obama’s spokesman responded as if it were once again 2009 or 2010, and the subject was DADT or the DREAM Act. He more or less said there would be no executive order, and described the goal of getting a full version of ENDA through Congress as “the avenue that we believe is the best to pursue broad-based protections for LGBT people.” But everybody knows that this bill simply isn’t going to pass the House for the next two years. So why—other than a misplaced fixation on process—would the administration decline to move forward on its own?
Whether Obama will eventually reverse course on ENDA, as he has done on similar issues in the past, remains to be seen. Yesterday I asked the White House whether the administration’s position had by any chance changed since last week’s press conference and was told it had not. But here’s hoping that the president’s thinking on this subject shifts soon—and that, when it comes to civil-rights questions going forward, we will see less of the Obama of 2009 and more of the Obama of 2012.
An earlier version of this story listed incorrect numbers for the states that protect employees based on sexual orientation and gender identity, and based only on sexual orientation.