American Presidents are famous for stretching the letter of the law: Nixon's attempt to sabotage the Democratic Party, Reagan's Iran-Contra scandal, George Bush's extraordinary rendition. When the political climate demands, the Executive is often willing to push the edges of legal behavior in order to achieve a political end.
But when it comes to gay rights, Obama doesn't want to breathe on the boundaries of the law, let alone give them the shove they need.
On Friday, the Office of Personnel Management -- a Federal agency controlled by the Obama administration -- refused to comply with a court order to extend family health benefits to a Federal staff attorney who has a same-sex partner. In an apologetically worded memo, the OPM stated that the Defense of Marriage Act barred the agency from recognizing same-sex partners as family members -- even for the purposes of the health plan. DOMA meant that the court order must be ignored.
This is one logical approach to the situation.
Judge Alex Kozinski, chief judge of the 9th Circuit Court of Appeals, has a different perspective: He states in his order that the Federal Employee Health Benefit Act creates general guidelines for minimum health coverage. For example, the health plan must cover an employee's children, but the upper age limit for the definition of "children" can be extended far beyond the common understanding of that term (age 25 perhaps) and still comply with the Act. Or, while the Act requires spouses be covered under the health plan, it says nothing about the ability of the Federal government to extend health coverage to same-sex partners in addition to spouses. There is no legally mandated upper limit when it comes to health insurance provision.
Judge Kozinski uses sound legal reasoning to grant the Obama administration permission to widen the umbrella. He points out, this broader health insurance provision would harmonize state and federal law on a touchy subject while still complying with the dictates of the Federal Employee Health Benefits Act and DOMA.
Perhaps another judge would see things differently. But as long as there is a plausible opportunity to provide equal rights, shouldn't an administration committed to equal rights jump at the chance to do the right thing?
The Obama administration would rather hide behind apologies and Department of Justice memos: "The decision in this matter was not reached lightly -- after we learned of this development, we examined our options and consulted with the DOJ. ...DOJ advised us that the order issued by Judge Kozinski does not supersede our obligation to comply with existing law."
While they pretend that the law is a concrete inflexible animal incapable of multiple interpretations, LGBT rights in this country continue to languish without the benefit of strong political leadership. This is a missed opportunity, and indicative of a dangerous tendency to avoid and ignore opportunities to fulfill election obligations put forward by Obama not so many months ago.