The Error of Progressive Pushback

Progressives are becoming increasingly polemic in their criticisms of the the Obama administration on the issue of gay rights. While I support their overall goals, those of full inclusion of the LGBT community in marriage, federal benefits, military service, definition in hate crimes legislation et al, I am also critical of their methods and focus. The diatribes against the president are misguided. The fault is being placed at the wrong feet for any actual, permanent solution to these issues of civil rights.

I should refrain from the third person when referring to progressives, as I count myself as one. The progressive agenda is to move the laws of this country forward towards inclusion, rather than preserve some ideological, and ultimately arbitrary, norm. This is why I embraced the change promised by the Obama campaign. Change that included social reforms, like health care and gay rights, and a return to the moral authority of the United States by adhering to the rule of law. The rule of law is by no means arbitrary. It is what gives us standing among the governments of the world. It is not so much an ideal to achieve, but a foundation on which to build. It is on the rule of law that we progressives, in our critique of the president, have been a bit wishy-washy and to which we must realign ourselves.

The concept of checks and balances gives the Executive branch the task of preserving the Constitution and faithfully executing the laws of the United States, among others. In some cases, especially civil rights cases, those two duties come into conflict. The Constitution affords the protections sought by the LGBT community, which the president must abide. It is also a sad fact that the laws of the United States (i.e. DoMA, DADT) have been written to deny these protections to the LGBT community, which the president must abide. The sorting of this conflict is highly politicized: by the right to appeal to its base of religious/social conservatives and by the left to appeal to its base of liberals and civil libertarians. We progressives have focused too much on this divide and we've begun to make similar, outrageous accusations which we accuse the right of making.

We were very critical of the previous administration's use of executive orders. George Bush was out of control when it came to executive orders. He expanded government by executive order, creating the Office of Homeland Security and others. He declared war by executive order, declaring air space above Afghanistan a combat zone and confiscating/vesting certain Iraqi property. He attempted legislation by executive order, convening the President’s Council on Bioethics. Executive order is a prerogative of the president, but George Bush used these orders to circumvent checks and balances, enacting policy with minimal (if any) input of the legislature.

I would like to dispel a few rumors. Firstly, memos issued by the the Department of Justice (DOJ) are not representative of the president's actions or intentions. The DOJ is not the White House, is not the voice of the White House, nor does it execute the will of the president or his advisors. We have had that problem in the past when the DOJ was instructed, allegedly, to come up with justifications for the use of torture. This is beyond the scope of the DOJ authority, being bent to the will of the president or vice president. Their opinions were written to circumvent the rule of law. The DOJ represents the United States in criminal and civil litigation before the Supreme Court. Last week’s memo was the DOJ performing its role within the executive branch of government: to uphold the laws of the United States. The DOJ is not, anymore, in the business of constructing legal cases per terms of the White House. It is independent of the White House and doing its job. The memo lays out procedural opposition but not a compelling argument. There are premises that the Supreme Court can reject outright or that the petitioners can challenge.

Second, the DOJ memo does not liken gay marriage to incest. Here is where we begin to come off the rails, sounding like Rush Limbaugh or Bill O’Reilly. We cannot make our case by misrepresenting the arguments of our opponents. The memo cites specific case law wherein the “full faith and credit” clause of the Constitution cannot be used to force states to contravene their own policies. It uses marriage cases, appropriately, as well as workers compensation. The media, and I detest having to say this, has blown out of proportion correct citations in the memo that show how marriage law in Italy doesn’t apply in Connecticut. Arizona does not have to accept the marriage of first cousins, legal in New Mexico. California businesses do not have to conform to Massachusetts’ compensation laws. While the marriage cases cited are repugnant, they are not cited as equivalent or in the same category as same-sex marriage. The point is argued that “full faith and credit” does not force one state’s policy on another. For my money, this is one of the memo's weaker arguments because it can be wrongly interpreted as equating unchosen lifestyles with learned behavior.

The courts and the DOJ, not the White House, have rejected all petitions of the LGBT community thus far. The Obama White House has made small concessions. For instance, the military must now demonstrate how a member’s sexual orientation is a detriment to his regiment before dismissal and most recently giving some conciliatory benefits to gay and lesbian federal employees. We have criticized him for those concessions as "pandering to a Democratic voting bloc." We are loudly frightened that in the not-quite five months he has been president he has not delivered on a campaign promise. He has promised to repeal DoMA. Unfortunately, that is not his job. As president, he can only enforce the laws of the country. The DOJ can only argue in defense of the laws of the country. If the DOJ were to selectively argue cases or ignore cases based on their social relevance, we would have Bush all over again, if not worse. The justice system would be at the mercy of the social-issue-of-the-day, which could potentially include conservative assistant attorneys general writing memos on abortion. The president has stated, multiple times, that the onus of this issue is on Congress. He is correct.

We do ourselves no good in being angry at Obama and shouting that he’s abandoned the LGBT community. Is it worthwhile to petition the president or withdraw money from Democratic fundraisers? Sure. It will definitely get his attention. He absolutely needs to press Congress more in stepping up to this issue. But so do we. DoMA is a federal law. DADT is a federal law. Only Congress has the authority to change duly enacted federal laws. When the chickens ran the henhouse in the nineties, Clinton compromised on the sweeping social reforms he had proposed. His compromise came in the form of his signature on these socially unjust laws. Obama does not want to make the same mistakes as Clinton or Bush. He does not want to over extend his executive authority, temporarily fixing this or that situation, but impotent to address the overarching problem. Nor does he want to compromise due legislative process. In the scenario where Congress puts forth a bill ending marriage discrimination, service discrimination, and Obama promises to veto said bill(s), then is the time to descend on him with great vengeance and furious anger.

Right now we sound silly. We reduce legal rhetoric into inflammatory sound bites. We plow forward with legal challenges and expect the DOJ to stand aside. We demand the president over step his authority in handing us what we want. We are, in short, disorganized. The court filings are happening too soon, and the grounds on which they are being argued are shaky. We are fighting for piecemeal concessions when the issue extends far beyond marriage and military service.

There is a movement to demonstrate in front of the White House in October. In another time (as in "with an actual income") I probably would have bought a bullhorn and a plane ticket by now. We are right to bring this issue to the front door of the president. But to expect this change to come from his office alone is misguided and wrong.