A Response to David Badash on Obama and Gay Rights

Some interesting things are going on in the gay rights movement of late.  Just like a lot of self-proclaimed 'progressive' groups have made it a mission to bash the President - who in my judgment is the best friend progressives have ever had in the White House - some gay rights advocates have jumped on the same bandwagon.  I see long-time gay rights blogger David Badash's article, Obama's Gay Rights Come With An Expiration Date in that light.

Let's first delve into what precisely is happening here.  Badash is incorrect on several fronts.  While he correctly points to Virginia's regressive Republican governor rescinding protections for gay Virginians that were put in place by Executive Orders of the former Democratic governor, Badash fails to understand the basic nature of the issues at hand here.  These are not - I repeat, not - mere executive orders.   These are regulations, and at least in one case, regulations implementing a law.

For example, take the Family Medical Leave Act under which the Department of Labor is now proposing a new rule that would allow same sex partners to take time off to care for a loved one or their children.  It's not a new law, but DOL is interpreting the law to extend those protections to gay parents.  The Executive branch is specifically tasked with the power and the obligation to interpret the law, and that is what they are doing here.  As DOL suggests in the proposed rule,
Congress stated that the definition was intended to be “construed to ensure that an employee who actually has day-to-day responsibility for caring for a child is entitled to leave even if the employee does not have a biological or legal relationship to that child.”
It is based on that statement of Congress that this new interpretation takes shape.  If Congress already said that, and DOL is implementing the law, what's the beef?  It's not a policy implemented by an Executive Order, it is a regulation issued by an agency to enforce existing law.

Then there's the the new Medicare and Medicaid regulations that have compelled hospitals accepting those federal insurance programs to respect a patient's advanced directives with respect to visitation rights, including for domestic partners.  It's not quite an interpretation of a law but the basic right of individuals to choose who they want to be able to visit them in the hospital and their medical proxy.  It too is an agency regulation.

In both cases, these are not new laws, but these are regulations (at least one case to enforce existing law) that are proposed and eventually finalized.  Can regulations be repealed by a succeeding administration?  Yes.  But not as easily as rescinding an executive order.  Presidents impose and relax the global gag rule, for example, with the stroke of a pen.  They do not have that luxury for existing standing agency regulations.  If they want to change the rules, they must have the agency issue a new proposal for a rule, go through a legally mandated public comment period of 60 days, and then finalize those regulations.  The process is a little more burdensome than the stroke of a pen.

A future administration will indeed face a good deal of opposition if they tried to repeal these regulations.  But it is still possible.  Protections explicit and enshrined in law are indeed stronger.  That is why President Obama supports granting same sex couples the same federal rights as married straight couples under the law, a repeal of DOMA, as well as the passage of the Employment Nondiscrimination Act.  The President last year signed into law the Matthew Sheppard Hate Crimes bill, protecting our community against hate crimes.  Don't Ask, Don't Tell repeal is moving through Congress as I write.  The President isn't simply relying on executive orders and regulations issued by his administration.  Those are, rather, examples of what his administration can do now, even before Congress acts, while legislation moves in Congress.  This isn't happening in a vacuum.

I also want to sound a note of caution.  Badash wants to direct us to Virginia as an example of how one governor can undo the protections for LGBT people afforded by another governor, but forgets about California.  Californians passed a Constitutional amendment - not just a law - invalidating the Constitutional - not just legal - right to marry for same sex couples.  That was less than 2 years ago.  For those who think laws and legal protections are permanent, think again.  That is not always the case.  Laws can be repealed, too.  Hell, we're trying to do just that at the federal level - repealing Don't Ask, Don't Tell and the Defense of Marriage Act.  The price of freedom is nothing short of undaunted, eternal vigilance.

Lastly, I want to address a broader argument Badash is making in his piece that seems to fly in the face of history.  He is faulting the President for "incrementalizing" civil rights for LGBT Americans.  Really?  I would like Badash to name a single civil rights movement for anyone anywhere that wasn't incremental - that all happened at once.  While justice delayed is justice denied, no civil rights movement has succeeded but for incrementalism.

Women's suffrage was gained in 1920.  How long did it take Congress to pass Title IX for women's sports in schools?  The Lily Ledbetter Fair Pay Act for women was signed into law just last year.

Slavery officially ended in the US in the 1860's.  Yet, the 24th Amendment, outlawing poll taxes, was not ratified until 1964.  Nor did the Civil Rights Act.

I mean, heck, look at the gay rights movement in the US.  We have gained legal recognition of our rights incrementally in the states that we actually have any legally recognized rights.  Housing non-discrimination.  Employment non-discrimination.  Inheritance rights.  Right to share employer benefits.  Hospital visitation rights.  Right to file joint state tax returns.  Incrementally, more and more rights, all the way to marriage in some states.  Civil rights happen in increments.  That is essentially what Martin Luther King, Jr. argued when he said, "The arc of the moral universe is long, but it bends towards justice."

This President is not trying to "tie" expansion of LGBT rights to his presidency.  He is trying to use the powers of his office to do the things that can be done quickly without waiting for Congress' approval while Congress works on things that need to be done.  I have said it before: this President is a great friend of the LGBT community.  His actions are to be lauded, not put down.  Our focus as a community should be to push Congress to adopt more reforms into law, not to snipe at a President who is on our side.


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