Lesbian, gay, bisexual, transgender, and questioning (LGBTQ) Americans had cause to celebrate following the election of President Barack Obama on November 4, 2008. Throughout his campaign, he promised to address many issues vital to the LGBTQ community, including pledging to lead the charge for the repeal of the Defense of Marriage Act (DOMA), which establishes the federal definition of marriage as being between one man and one woman, and the military’s “Don’t Ask, Don’t Tell” policy, which mandates the discharge of openly gay service members. Obama also supported the Employment Non-Discrimination Act (ENDA), a bill which has languished in Congress for 15 years and if passed would prohibit employment discrimination on the basis of sexual orientation and gender identity. These promises helped Obama garner the support of an estimated 70 percent of voters who identified themselves as “gay, lesbian, or bisexual” in an exit poll, as well as a great deal of financial support, including almost two million dollars raised by the Human Rights Campaign alone. [i]In the year following Obama’s election, some progress has been made in advancing LGBTQ rights but these priorities have been stalled and many of his LGBTQ supporters have grown increasingly dissatisfied.
Among the progress that has been made this year was the passage of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act on October 22, 2009. The legislation makes it a federal crime to target a victim based on sexual orientation or gender identity. As such, it allows judges to “impose harsher penalties on crimes that are motivated by such animus,” and the Justice Department to “help local police departments investigate alleged hate crimes.”[ii] The legislation passed as an amendment offered during conference to a bill authorizing the budget for the Department of Defense. This and similar measures had been introduced in Congress for over a decade, but had failed to pass due to Republican opposition and a veto threat from former President George W. Bush. Obama had repeatedly stated that he would sign a hate crimes bill if passed by Congress, which he did on October 28, 2009, and commemorated it with a White House reception for LGBTQ activists and the families of the hate crime victims for whom the bill was named.
In another advance, on October 21, 2009, the Department of Housing and Urban Development (HUD) proposed a rule that would include lesbian, gay, bisexual, and transgender (LGBT) families in the definition used to determine families eligible for housing subsidies.[iii] The rule would also ensure that sexual orientation and gender identity could not be considered in determining suitability for mortgage loans insured by the Federal Housing Administration. HUD also will commission a national study of LGBT discrimination in housing. A study conducted in Michigan found that over one quarter of same-sex couples encountered bigotry while attempting to rent or purchase a home or obtain a mortgage, even in cities with non-discrimination ordinances.[iv] That same day, the Department of Health and Human Services announced the establishment of a National Resource Center dedicated to addressing the needs of aging LGBT citizens. The Resource Center will “seek to educate mainstream aging services providers about the existence and special needs of LGBT elders … sensitize LGBT organizations to the special concerns of older LGBT adults … [and] educate the LGBT community about the importance of planning ahead for future long-term care needs.”[v]
Additional LGBTQ advancements made by the Obama administration include a Presidential directive to extend long-term care benefits to domestic partners of civil service employees and allow them to use sick leave time to care for same-sex partners, as well as the repeal of a 22-year ban forbidding HIV-positive individuals to legally enter the United States or qualify for citizenship.
Advocates are hoping that they will soon be able to count the passage of ENDA, and the subsequent signing by the President, as another accomplishment. Obama stated his support for ENDA during the campaign and it has already been introduced in both the House of Representatives and the Senate. The House bill currently boasts 194 cosponsors, and the Senate Committee on Health, Education, Labor, and Pensions held a hearing on its ENDA bill, which has 43 cosponsors, on November 5, 2009.[vi] While markup of ENDA was recently postponed in the House until at least January, it appears likely that it will begin to move forward again then and advocates are hopeful that it will move quickly through both the House and Senate and to the President’s desk in the new year.
Despite the afore-mentioned accomplishments, Obama’s most consequential campaign promises to the LGBTQ community remain unrealized, which has led to a great deal of dissatisfaction among his formerly ardent supporters. Regarding marriage equality, Obama has yet to take any action to fulfill his campaign promise to repeal DOMA. In fact, his administration generated a great deal of ire following the Department of Justice’s (DOJ) actions in a case involving a California couple suing to overturn DOMA. In Smelt v. United States, DOJ attorneys filed a Motion to Dismiss that not only supported DOMA, but surprisingly compared same-sex marriages to those that are incestuous or between an adult and a minor. Following the ensuing outcry, the DOJ defended its actions, asserting that its responsibility is to defend current law.[vii] The subsequent DOJ brief, while still arguing for dismissal of the case, clarified that the “administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal;”[viii] however, that did little to quell the displeasure among proponents of marriage equality. Most recently, the approval by Maine voters of a referendum to repeal a law allowing same-sex marriage also spurred discontent within the LGBTQ community. Many LGBTQ activists felt that Obama’s “failure to speak out openly in defense of Maine’s marriage law”[ix] contributed to the narrow defeat.
In addition, Obama has yet to take any action to realize his campaign promise to repeal “Don’t Ask, Don’t Tell.” There have been some small indications that the military may be amenable to addressing this issue. For example, an essay written by a colonel in the Air Force that “effectively demolishes the primary, wrongheaded rationale for the law: that unit cohesion would be harmed if homosexuals served openly” won the 2009 Secretary of Defense National Security Essay Competition and was published in Joint Force Quarterly.[x] Still,Obama has largely remained unresponsive on the issue, stating that “his generals are reviewing the issue.”[xi] This vague response to an oft-repeated campaign promise has left LGBTQ donors, activists, and service members unsatisfied.
In response to this mounting discontent, the LGBTQ community organized a march on Washington on October 11th. It is estimated that tens of thousands attended the National Equality March, aimed at reminding government leaders that the participants are frustrated with their inaction on LGBTQ issues, and are “ready to fight at the federal level for across-the-board equality.”[xii] In addition, a group of prominent bloggers and activists is calling on supporters of LGBTQ rights to pledge not to make donations to the Democratic National Committee, Organizing for America, and the Obama re-election campaign until DOMA and “Don’t Ask, Don’t Tell” are repealed and ENDA is passed.
Obama’s support in the LGBTQ community appears increasingly tenuous. Still, the audience at the annual dinner to raise funds for the Human Rights Campaign, the nation’s largest LGBTQ advocacy organization, enthusiastically applauded Obama’s address, in which he renewed his promise to repeal DOMA and “Don’t Ask, Don’t Tell.” Obama’s actions in the months ahead will determine if he is able not only to regain the LGBTQ support he has lost, but to retain that which he still has.
[i] “27% of Gay Voters Sided With McCain,” The Advocate, 7 November 2008, accessed 9 November 2009, <http://www.advocate.com/article.aspx?id=41389>; “The Human Rights Campaign Election 2008,” Human Rights Campaign, accessed 9 November 2009, <http://www.hrc.org/documents/Electorial_Work-v4.pdf>.
[ii] Perry Bacon Jr., “After 10-year dispute, expansion of hate crimes law to gays signed,” Washington Post, 29 October 2009, accessed 6 November 2009, <http://www.washingtonpost.com/wp-dyn/content/article/2009/10/28/AR2009102804909.html>.
iii] United States Department of Housing and Urban Development, “Obama administration to ensure inclusion of the LGBT community in HUD programs,” Press Release published 21 October 2009, accessed 6 November 2009 <http://portal.hud.gov/portal/page/portal/HUD/press/press_releases_media_advisories/2009/HUDNo.09-206>.
[iv] Fair Housing Center of Michigan, “Sexual Orientation and Housing Discrimination in Michigan,” January 2007, accessed 6 November 2009, <http://www.fhcmichigan.org/images/Arcus_web1.pdf>.
[v] United States Administration on Aging, Department of Human Services, “Frequently Asked Questions—
Technical Assistance Resource Center: Promoting Appropriate LTC Supports For LGBT Elders,” accessed 6 November 2009, <http://www.aoa.gov/AoARoot/Grants/Funding/docs/2010/LGBT_Resource_Center_Funding_Opportunity_FAQ.pdf>.
[vi] “H.R. 3017,” THOMAS, accessed 11 December 2009, <http://thomas.loc.gov/cgi-bin/bdquery/z?d111:HR03017:@@@P>; “S. 1584,” THOMAS, accessed 11 December 2009, <http://thomas.loc.gov/cgi-bin/bdquery/D?d111:3:./temp/~bdcd33:@@@P|/bss/111search.html|>.
[vii] John Cloud, “Obama, the Gay-Marriage Flip-Flopper,” Time, 19 August 2009, accessed 9 November 2009, <http://www.time.com/time/politics/article/0,8599,1917344,00.html>.
[viii] Reply Memorandum In Support Of Defendant United States Of America’s Motion To Dismiss,” Smelt v. United States, filed 24 August 2009, accessed 9 November 2009, <http://hunterforjustice.typepad.com/files/smelt-reply-dismiss.pdf>.
[ix] David Crary and Lisa Leff, “Gay leaders blame TV ads, Obama for loss in Maine,” Washington Post, 4 November 2009, accessed 6 November 2009, <http://www.washingtonpost.com/wp-dyn/content/article/2009/11/04/AR2009110403738.html>.
[x] “The Damage of Don’t Ask, Don’t Tell,” New York Times, 3 October 2009, accessed 10 November 2009, <http://www.nytimes.com/2009/10/04/opinion/04sun2.html?scp=2&sq=unit+cohesion+homosexuals&st=nyt>.
[xi] Anne E. Kornblut, Ed O’Keefe, and Michael D. Shear, “As Pressure Grows, Obama Addresses Gay Rights Group,” Washington Post, 11 October 2009, accessed 6 November 2009, <http://www.washingtonpost.com/wp-dyn/content/article/2009/10/10/AR2009101000627.html>.
[xii] Nelson Hernandez and Yamiche Alcindor, “Making a Federal Case for Gay Rights,” Washington Post, 12 October 2009, accessed 6 November 2009, <http://www.washingtonpost.com/wp-dyn/content/article/2009/10/11/AR2009101100161.html?sid=ST2009101101924>.