In a brief and perfunctory prepared statement, read carefully from a script, President Obama just signed an order a presidential memorandum directing federal departments to grant some benefits to employees’ same-sex partners requesting federal departments to review over the next 90 days whether they can grant some benefits to employees’ same-sex partners under federal law. The presidential memorandum itself is here. The new benefits would include things like sick leave for partners, the use of medical facilities, access to long-term care benefits, and instruction in foreign languages, if such benefits are otherwise available to spouses.
Federal law (5 USC 8901) blocks the Office of Personnel Management from granting same-sex couples the most important things — like health benefits. Broader relief will come only through the repeal of DOMA or, for federal employees specifically, through the proposed Domestic Partners Benefits and Obligations Act. Obama reiterated that he supports both goals. He also promised that he will work “tirelessly” in the “days and years to come” to achieve them. A few days ago, Obama’s liaison to the gay community said that action on anything significant is a long way off.
Interestingly, Obama’s rhetoric was at odds with his own Justice Department’s brief, filed late last week, defending the constitutionality of DOMA. Obama called DOMA “discriminatory,” though he never said on what grounds he thinks it’s discriminatory. His DOJ last week maintained that DOMA doesn’t discriminate based on sexual orientation or sex, the two most obvious ways in which one might think it discriminatory. I may have missed it, but Obama never used the words “gay” or “lesbian” or “gay couples/families,” only the more neutral and palatable “same-sex partners” and the esoteric “LGBT.”
Obama also asserted that DOMA “interferes with states’ rights,” presumably because it changes the historical rule that federal benefits to spouses are available based on a state’s own definition of marriage. This allowed states to define marriage for themselves, even if other states define it differently. But last week, the DOJ remarkably asserted that when it comes to same-sex marriages — and such marriages alone — the usual federal presumption means that objecting states would be forced to subsidize gay unions in other states. In other words, the DOJ argued that respecting “states’ rights” means not recognizing gay marriages under state law.
The DOJ brief has been subjected to intense criticism over the past few days. But Obama made no mention of that squalid document in his statement today. Will it be withdrawn or modified?
With his back-pedalling on DADT, no action on DOMA, nothing done to lift the HIV travel ban, nothing ventured to allow same-sex partners to immigrate, and employment protection and even a useless hate crimes bill stalled in an overwhelmingly Democratic Congress, lots of Obama’s strong gay-rights supporters are becoming restive. Obama has been neither the moral nor the political leader they expected. It’s still early and he’s had a lot on his plate. But presidents always have more pressing matters to attend. And if history is any guide, he’s now at the height of his political power. Today’s action was, it seems, the least he could do.
UPDATE: Nan Hunter has a typically smart post on the president’s action today. It’s basically a bare-bones instruction to executive departments to take action in the future. Could have been issued months ago, but it’s timed to throw a sop to some upset supporters.