Gay Activists Blast Obama’s Domestic Partner-Benefits Directive

by Kilian Melloy

EDGE Staff Reporter

Wednesday June 17, 2009

In the wake of a Justice Department brief submitted to a court in support of the Defense of Marriage Act (DOMA), President Obama is slated to sign a memorandum on June 17 providing some benefits for the same-sex life partners of gay and lesbian federal employees.

But critics charge that the memorandum, which has limited scope and staying power, is an anemic gesture that will do little to redress the inequalities in federal benefits faced by gay families.

Partly because of DOMA itself, full equality of family benefits for federal employees would be difficult to come by without comprehensive legislative action.

But GLBT equality activists, already disappointed by the Justice Department's brief, see in Obama's memorandum an action that falls far short.

DOMA has been challenged in a suit brought by a California couple. The pro-DOMA brief submitted by the Justice Department asserted the Constitutional validity of DOMA, which bars any federal recognition of same-sex marriages, and denied that gay and lesbian families were being subjected to discrimination under the law.

The brief also used what many in the GLBT community viewed as objectionable language, at one point comparing marriage equality to incestuous relationships.

According to a government spokesperson, the Justice Department typically submits such briefs in defense of existing laws, rather than pushing for a change in law.

A White House spokesman offered a comment to the effect that President Obama remains committed to DOMA's repeal and greater equality before the law for gay and lesbian families.

GLBT leaders had hoped for a stronger stance from Obama, who as a candidate spoke out against DOMA and expressed the opinion that GLBT Americans deserve to live free of inequality.

Calling the directive "A political nod" to gays and lesbians who supported Obama's campaign but have begun to question his commitment to their needs, a June 17 Associated Press article noted that a June 25 DNC fundraiser slated to reach out to GLBT donors had lost a number of high-profile gay participants over the Justice Department's pro-DOMA brief.

Whereas some had hoped for an executive order providing federal benefits equality for all government employees, the president's directive is a mere memorandum, meaning that the few benefits it provides would not last beyond Obama's presidency, according to a June 16 at AmericaBlog.

The exact scope of the memorandum's provisions was not known at this writing. AmericaBlog asserted that the new benefits would stop well short of providing full equity for gay and lesbian employees of the federal government.

"Just which benefits will gay federal employees be getting?" the AmericaBlog article read.

"The White House is refusing to say. But it's unlikely it's anything involving money, like Social Security, or, as we now know, health care. Which is ironic, since health care is Obama's number one issue (but not for us)."

The article also expressed skepticism that Obama's memorandum would extend any form of health care to the families of gay and lesbian employees, because such a provision would require that the federal government violate the stipulations of DOMA.

The article also noted that, whatever benefits might be extended to families of other government employees, the families of gay and lesbian troops would still be left out in the cold because a gay or lesbian servicemember acknowledging a same-sex partner would be liable to discharge under the terms of Don't Ask, Don't Tell, another anti-gay law that originated in the 1990s under then-president Bill Clinton.

As a candidate, Obama also spoke out against DADT, but his administration has yet to take any significant action on the matter.

The AP article noted that the White House had indicated a preference for an overall legislative remedy to DADT, which would prove more "lasting and durable."

The article quoted Robert Gibbs, a spokesman for the administration, as saying that, "The president agreed that... the policy wasn't working for our national interests, that he committed to change that policy, that he's working with the secretary of defense and the joint chiefs on making that happen."

A number of top-level military brass have come out against DADT, many of them after retirement; however, even military leaders and legislators who supported the compromise measure, which allows gay and lesbian troops to serve as long as they do not disclose their orientation, have said that the policy is outdated and should be reviewed, if not scrapped.

"So, because of Obama's inaction on his main presidential campaign promises to our community--DOMA and DADT--we have a scenario in which gays will get fewer benefits than their straight colleagues, and some gay federal employees will get benefits (civilians) while others (military) will not," the AmericaBlog article noted.

State Department employees took heart at the announcement that Secretary of State Hillary Clinton would work to extend benefits to the families of gay and lesbian employees in that department, but such benefits could not be comprehensive without legislative action, noted a May 28 article at Government

The article noted that different departments in the federal government offer different levels of equity for gay and lesbian workers. The FDIC, for example, agreed to terms with their employees' union that allowed the families of gay and lesbian employees access to health benefits.

But a systematic, government-wide policy of equal treatment would require action from the Office of Personnel Management or else legislative approval of the Domestic Partnership Benefits and Obligations Act, a bill requiring benefits equity across the board for federal employees, reported the article.

Executive noted that earlier this year, judges in two separate federal cases ruled that the Office of Personnel Management was empowered to grant benefits despite DOMA.

In one ruling, 9th Circuit U.S. Court of Appeals chief judge Alex Kozinski determined that the OPM had the authority to extend such benefits, saying that legal guidelines established a minimum for the granting of benefits, rather than spelling out comprehensives who may and may not enjoy them.

In the other case, another judge with the 9th Circuit, Stephen Reinhardt, ruled on DOMA itself, saying that the law is unconstitutional.

The OPM still maintains that DOMA prevents the Office from extending benefits to the families of gay and lesbian employees.

The minimal benefits that President Obama is expected to provide in the memorandum already fall well short of what some say is needed.

The AP article quoted former adviser to President Clinton Richard Socarides as saying "If [the memorandum] doesn't include health insurance, if he doesn't talk about the military and about the [DOMA] brief, I think it will fall short.

"Right now, people are looking for real action."

According to the AmericaBlog article, President Obama would also be unveiling a directive to include transgendered individuals to existing non-discrimination policies.

The article noted that, "Bill Clinton adopted the initial non-discrimination policy in the 1990s. And even George Bush left the policy in place.

"So, yes, this is a small step forward, but very small indeed."

Kilian Melloy serves as EDGE Media Network's Associate Arts Editor and Staff Contributor. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, The Gay and Lesbian Entertainment Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.