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Gay Rights on the Move? Obama's Incoherent Record

09/01/2011 04:00 pm ET | Updated Nov 01, 2011

No president has talked up gay rights more than Barack Obama. He gave a brief shout-out to gay voters in his November 5, 2008, presidential victory speech. In proclaiming this June to be Lesbian, Gay, Bisexual, and Transgender month, Obama championed "the task of making our country a more perfect Union" and boasted "the great American promise that all people can live with dignity and fairness under the law."


But the administration's approach continues to be incoherent. Dan Choi, the former Army lieutenant who, protesting Don't Ask, Don't Tell (DADT) last November, handcuffed himself to a fence at the White House, now faces federal charges and up to six months in jail. His attorney claims his client is being singled out, noting that most such protesters are brought before local court, charged with disobeying a police order, and fined up to $1,000. DADT has since been overturned, yet presumably the feds seek to make an example of Choi, rather than simply move forward now that the controversy is moot. If true, this would be an audacious maneuver, considering that it comes from the same administration that refuses to investigate alleged torture cases from the Bush years.


The Obama administration dragged its feet on DADT. Obama signed a repeal in December, but not until after more than six hundred dismissals on his watch, including Choi -- an Arabic linguist whose special skill typifies the practical tension many have identified between DADT and U.S. aims abroad. A 2005 Government Accountability Office report found that 322 discharged service members had been trained in "an important foreign language," including 54 who knew Arabic.


Even after Obama repeatedly made it clear that he found DADT to be unjust, his Justice Department defended it and successfully obtained a stay in October 2010 of a District Court injunction on the policy, that court having found it unconstitutional. Obama signed the repeal seven months ago, but in April an airman was dismissed because DADT remained in effect until 60 days after the administration's certification report issued in late July.


Gay rights activists have further cause for frustration when it comes to Obama's record on the marriage question. When Obama won the Democratic nomination in August 2008, he declared, "I know there are differences on same-sex marriage, but surely we can agree that our gay and lesbian brothers and sisters deserve to visit the person they love in a hospital and to live lives free of discrimination." This was brilliant political spin. As the supposed progressive in the contest against Hillary Clinton, whose husband had signed the Defense of Marriage Act (DOMA) into law, Obama was positioning himself as both a unifier and the more liberal candidate. Yet he, like John Kerry before him, always opposed same-sex marriage. Shortly before his election, Obama made it clear: "I believe marriage is between a man and a woman. I am not in favor of gay marriage." In contrast, social radical Dick Cheney came out in favor of gay marriage before Bush's reelection in 2004, saying that "freedom means freedom for everyone. People... ought to be free to enter into any kind of relationship they want to."


Many social conservatives as well as progressives are resistant to the idea that government should impose a definition of marriage. Although Cheney is rarely the best authority on how to diffuse social and political tensions, he may be onto something. If people were free "to enter into any kind of union they wish," and others were free to recognize or not recognize such relations by their own conscience, we would finally have marriage freedom and tolerance.


Americans across the spectrum should also agree to keep the federal government out of the issue. On this, too, Obama has been all over the map. Although opposed to gay marriage, Obama has also opposed the federal Defense of Marriage Act (DOMA), calling it "abhorrent" as far back as 2004. But in July 2009, on the 42nd anniversary of Loving v. Virginia -- the Supreme Court decision overturning bans on interracial marriage -- Obama enraged gay activists when his Justice Department filed a brief that strenuously defended DOMA. The brief was more than an appeal on constitutional or even cultural grounds, gratuitously comparing homosexuality to incest and pedophilia.


In February 2011, the administration finally announced that it would no longer defend DOMA against federal court challenges. Obama argued this June that "part of the reason that DOMA doesn't make sense is that traditionally marriage has been decided by the states." The administration's states-rights stance infuriated social conservatives who believed the executive should uphold this law. Many progressives were also angered by the decision, considering it disastrous to leave civil rights up to the states.


Both sides, however, should have appreciated Obama's constitutional logic -- at least in this instance. Marriage is not a federal issue. Moreover, the president has the authority and duty to reject laws that violate the Constitution. Conservatives interested in a strict reading of the Constitution and the division of power should have praised the administration. Progressives, for their part, should likewise appreciate that the federal government is a poor arbiter on civil rights. Even Obama, supposedly one of the most progressive presidents in recent years, has governed like a conservative on many social issues. Meanwhile, Iowa's legislature has affirmed same-sex marriage.


Obama's latest betrayal of his own constitutional take on DOMA further illustrates the arbitrary and dangerous nature of centralized control over the institution of marriage. In August, the administration ordered the expulsion of John Makk, an Australian citizen who married American, Bradford Wells, in Massachusetts seven years ago. Makk is the primary caregiver of Wells, who is afflicted with AIDS. Immigration officials denied his application for permanent residency as the spouse of an American citizen, citing the Defense of Marriage Act.

Only half a dozen states recognize gay marriage, but the federal government is the entity that threatens protesters with months of jail time, ruthlessly deports vital caregivers, and imposes discriminatory policies upon the nation. Having a supposedly progressive president like Obama has not softened the touch of Big Brother's iron fist. The best we can hope is that his administration stops enforcing DOMA altogether, but its inconsistent record renders the prospect unlikely. As with much of his presidency -- detention policy, warrantless wiretapping, Guantánamo, transparency, justice for whistleblowers, Afghanistan, and Wall Street bailouts -- the unifying principles appear to be political pragmatism and power, rather than principle and precedent. No wonder Obama the politician talks about gay rights like a Stonewall activist, while as chief executive, he takes positions to the right of Dick Cheney.