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Obama's Gay Rights Conundrum

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The past 24 hours are typical of the strange, complex position of gay rights today: On the same day of a judge's injunction blocking Don't Ask, Don't Tell, the Obama administration appealed on behalf of the Defense of Marriage Act.


Specifically, the Justice Department filed its appeal in Massachusetts, citing the 1996 Defense Of Marriage Act (DOMA). In that case, Judge Joseph Tauro had ruled that the act, which denies federal benefits to couples legally married in that state, violated the equal protection clause of the constitution. President Obama is on record opposing the Defense of Marriage Act (which, like Don't Ask, Don't Tell, was passed during the Clinton administration) but a spokeswoman said, "The Department of Justice has a long-standing practice of defending federal statutes when they are challenged in court, including by appealing adverse decisions of lower courts."

And, as we noted yesterday, a California judge followed up her ruling DADT unconstitutional with an injunction barring the discharge of gay and lesbian servicemembers. The Obama administration is probably going to appeal that too, and a stay is expected, meaning the policy will stand until further notice. On the other hand, he could listen to the 21 senators who asked him and the Justice Department not to appeal.


Last night on The Rachel Maddow Show, NBC's chief Pentagon correspondent added some interesting facts to the table: That 60-day window to appeal happens after the midterms, and right around the time of completion of this Pentagon study that is supposed to settle once and for all whether gays will destroy the military.

But his claim that DADT has already kind of been lifted — in the sense that Gates is said to have stopped discharging servicemembers who were involuntarily outed — seems exaggerated given that gay servicemembers are still not free to serve openly.


Both cases highlight the bizarre predicament of having a president who is officially against DADT (though, of course, not a public supporter of gay marriage), a tenuous Democratic majority in Congress, and top Pentagon brass against the policy, and yet plenty of roadblocks to it actually happening. Partly that's because of Obama's strategic and philosophical preference for legislative compromise — and political considerations.

Salon's Glenn Greenwald, who is not known for his lenience on the president, wrote yesterday, "Criticizing the WH for not suspending DADT = very fair. Criticizing them for defending constitutionality of DOMA/DADT = not very fair," adding, "In general, you don't want the WH picking and choosing which laws to defend - down that road lies lawlessness."


Andrew Sullivan also pushed that distinction. He said that while the Obama administration's preference for legislative change and defending the current laws in court was "constitutionally sound," Obama could still be doing more than he's doing, especially before we're likely to get all those far-right members of Congress next session:

Yes, the GOP is the main party to blame. But no, this does not excuse the extra-cautious, gays-are-radioactive mindset of the Obama administration. This ruling therefore represents a chance for the president. He has the executive authority simply to issue a stop-loss order to end the firing of gay troops until further notice. If the Senate does not pass legislative repeal this session, he should use it.


In the meantime, we've got one more major part of the base of the Democratic party feeling pretty alienated these days.

Obama Administration Appeals Gay Marriage Ruling [Reuters]
Obama's Excruciating Trap On Civil Rights [Daily Dish/Atlantic]

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You know what would be nice? If those who felt alienated from the Democratic base didn't just complain about their feelings of alienation, but took steps to insert themselves more powerfully into the party.

Sure, they face opposition from within the party and a whole lot more from without, but you know who else does? These psycho far-right GOP candidates. If you think normal, rational Republicans are sitting in their living rooms cheering on the Chrstine O'Donnells of the world because, gosh darnit, they get them seats back! you're dead wrong. Those people are as distraught and distressed that nuts have taken over their party. Can you imagine what an effective deployment (ba-dum-pa) of intelligent and policy-minded gay politicians, field organizers, candidates and the like would do for the Democratic party? Far from fragmenting it, I think it would actually bring it back together. I mean, look at how effective Barney Frank is, and he's just one person.

But either way, the onus for change and governing does NOT fall on Obama. We rely on Congress to legislate because to have the President make the laws in his own political image is disastrous and contradictory to Democracy in general. I find Obama's waffling on gay rights annoying at times, but I don't think he's the one who should be carrying that burden. The people who are supposed to speak for us — our Congress — no longer care to hear what we have to say. That MUST change, and not just through elections. The focus on elections as thermometers for the country's mood has caused those elected to represent us and make our laws to COMPLETELY shirk their duties as congressional representatives in order to start campaigning for the next election almost as soon as they're sworn into office. How can ANYTHING get done in that kind of environment?

Make Congress understand that we care about the laws they make. That we WANT them to be making laws! That we are sick of stagnant year after stagnant year because the only direction you can go when no one is paying attention to actual policy is backwards. DEMAND that your representatives listen to you AFTER you've voted for them. And if the wrong person wins, INUNDATE them with YOUR concerns and desires. What I want to see after this midterm election is not calls for Obama to fix DADT — I want to see every single teaparty candidate that makes it into office absolutely BURIED under a mountain of demands from their constituents for gay rights. Show them who their constituents REALLY are.