Carlos A. Ball is Professor of Law at the Rutgers University School of Law (Newark). He has written extensively on gay rights issues and is the author of From the Closet to the Courtroom, which chronicles five ground-breaking LGBT lawsuits that ultimately defined history.
For supporters of LGBT rights, the election of President Obama represented an apparent historical turning point for sexual minorities in our country. As a presidential candidate, Obama had said all of the right things: he criticized the military's Don't Ask, Don't Tell policy (DADT); he called for the enactment of the Employment Non-Discrimination Act (ENDA), which would protect employees against sexual orientation and gender identity discrimination; and called for the repeal of the Defense of Marriage Act (DOMA).
But now that almost a third of Obama's first term has gone by, there is growing despair among many of his LGBT supporters over how little the administration has accomplished on gay rights. We have been here before. Eighteen years ago many gay rights advocates celebrated the election of President Clinton, the first presidential candidate to reach out to the LGBT community, only to be disappointed by how clumsy and conflicted the new administration was in handling the gays in the military controversy.
The Obama administration seems less clumsy, but almost as conflicted as did the Clinton administration. Its support for the repeal of DADT strikes many as tepid. In his State of the Union address this past January, the President promised to work with Congress to end DADT. But the administration earlier this spring opposed efforts to add an amendment repealing that discriminatory law to a defense authorization bill. The most that it has been willing to do is to accept a compromise—which would repeal DADT at the end of the year if a Pentagon study group agrees—that leaves the issue unsettled for now. Similarly, the administration has so far failed to push for the repeal of DOMA or for the enactment of ENDA.
This is not to say that the administration has not taken some steps to address issues that are important to the LGBT community. For example, just last week the Department of Justice announced that it would prosecute domestic violence in cases involving same-sex relationships under the Violence Against Women Act. And, for the last year, the administration has been working on implementing an extension of some benefits for the same-sex partners of federal employees.
Although these steps are welcomed, they are hardly the types of changes that LGBT rights supporters had in mind when they opened up their hearts (and their pocket books) to Obama during the presidential campaign. What many of them hoped instead was that Obama would take the lead in reminding the country that issues of discrimination on the basis of sexual orientation and gender identity raise some of the most important civil rights questions of our time and that it is imperative that the federal government take the lead in making sure that all Americans are afforded the opportunities of equal citizenship.
The administration's hesitancy on gay rights may be the result of a lack of commitment to the issues. Or, it may be the byproduct of political calculations regarding what is legislatively achievable given the current politically charged environment. But we have reached the point when what explains the administration's cautiousness no longer really matters. What is more important now is that we are unlikely to see real progress on gay rights during the coming months. And with the Democrats unlikely to hold their large majorities in Congress after this fall's elections, the odds of major gay rights reforms during the second half of the President's first term seem even worse.
So it is now time to throw caution to the wind. It is important that the President take the initiative to fight for what is right on gay rights. It is better to lose after fighting than to lose without a fight. Yes, it would be nice to get results by repealing DOMA and enacting ENDA. But at this point, the LGBT community would settle for simple leadership from the man who promised sexual minorities so much during the 2008 presidential campaign.