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Gay-rights pioneer Frank Kameny was in the White House on June 17 to attend the signing of the Presidential Memorandum on benefits for the same-sex partners of federal employees. While he was waiting, he made some inquiries as to whether the president knew in advance about the now-notorious Department of Justice brief in the Smelt v. United States case challenging the Defense of Marriage Act (DOMA). The answer from a gay staffer was no — Obama was furious when he learned of the brief.
That does not get the president and his staff — including senior folk at DOJ — off the hook. Even conceding that the president has to defend the law on the books despite favoring its repeal, the DOJ brief goes beyond the call of duty with illogical and insulting arguments. There is a claim that DOMA is not discriminatory because a gay person can marry someone of the opposite sex, and a claim that federal neutrality on state law requires it not to recognize same-sex marriages, whereas in fact the federal practice is to recognize state choices.
Gay legal commentator Dale Carpenter writes, ”Of most interest is what the DOJ has to say about the due process and equal protection claims, rejecting just about every single variation of an argument that gay-rights scholars and litigants have made over the past 30 years.”
DOJ officials will reportedly meet this week with LGBT advocates to discuss the DOMA-related cases. That is fortunate, since DOJ is due in a few days to file a brief in Gill v. OPM, the lawsuit by Gay and Lesbian Advocates and Defenders (GLAD). This is a challenge to DOMA Section 3, dealing with federal discrimination, and legal experts consider it stronger than the broader Smelt case. We will know by the administration’s brief in Gill whether it has learned any lessons.
Reality-based activism requires a recognition that political friendships are never perfect, and we do not get everything we want at once. We must continue to press on multiple fronts, neither leaving the lobbying to a few people in Washington nor placing all of our hopes in litigation — especially considering the current makeup of the U.S. Supreme Court. The tide of history is with us, but we must be part of it, not wait for it to wash over us.
In my experience, politicians are more receptive when you give them credit, however small, in addition to criticism. As Washington Post columnist Jonathan Capehart noted, we cannot afford to be blinded by rage. To the question, ”What has Obama done for me lately?” the answer is: In addition to the Presidential Memorandum, Obama last week called on Congress to repeal DOMA; endorsed the Domestic Partnership Benefits and Obligations Act; and ordered the U.S. Census Bureau to release data on same-sex married couples in the 2010 census.
Obama should also issue a stop-loss order blocking further forcible discharges of gay servicemembers until ”Don’t Ask, Don’t Tell” is repealed, and should order the Department of Health and Human Services to speed up regulatory changes to end the HIV-immigration ban. But our friends in Congress need to grow a spine. As a friend suggested, the Democratic congressional leadership’s ”primary goal is preserving their majority, not figuring out the best way to get DOMA repealed.”
That is where grassroots pressure comes in. The boycott of a June 25, gay DNC fundraiser in Washington should be followed by a nationwide effort to contact every U.S. senator and representative, urging repeal of DOMA.
Obama’s leadership is needed, but he is not a magician and he needs our help. Hurling not just criticism but cries of betrayal after 150 days in office is foolish. Rep. Barney Frank (D-Mass.) urges us to learn from the National Rifle Association, and despite our community’s smaller numbers, I agree. NRA relentlessly works the halls of power rather than holding rallies on the Mall to talk to itself while members of Congress are out of town.
Anger is counterproductive if it is used to justify withdrawing from politics instead of doing smarter organizing. As Harvey Fierstein said after the 2004 election (in which the supposedly pro-gay Democratic nominee endorsed anti-gay state initiatives), we need to put our anger to work — on the inside, on the outside, and throughout the country. Don’t leave the task for others. The U.S. Capitol Switchboard is at 202-224-3121.