LGBT legal panel: There hasn’t been ‘real change’ under Obama

Last week, John wrote a post about the LGBT Law Association conference, noting the panel on LGBT issues and the Obama administration included a slew of Obama apologists. That panel took place today.

Scott Blair, an AMERICAblog reader and NYU Law student, wrote to us from Miami, where he is attending Lavender Law, the National LGBT Bar Association Annual Meeting. He was at the plenary session, “Real Change: LGBT Issues and the Obama Administration.” Scott provided his observations:

When I first saw the event, I don’t think I was alone in expecting it to be a mostly celebratory piece on President Obama’s accomplishments. Instead, there seemed to be a consensus, even from the most vehement supporters of Obama, that the President has failed to follow through on his promises to the LGBT community and has been in many ways a disappointment.

The panel consisted of Matt Nosanchuck (Senior Counselor to the Attorney General for the Civil Rights Division of the Department of Justice), Paul Smith (a partner at Jenner & Block LLP, Co-Chair of the Board of Directors of Lambda Legal), Courtney Joslin (a Professor at UC Davis and the chair of the ABA Commission on Sexual Orientation and Gender Identity), Elaine Kaplan (General Counsel at the Office of Personnel Management), Jon Davidson (Legal Director at Lambda Legal), and Tobias Barrington Wolff (Professor of Law at the University of Pennsylvania and Obama’s LGBT Advisor during his campaign).

The panel opened with a discussion of the Office of Personnel Management and the DOJ listing the changes brought under the Obama administration, along with some surprising information. Matt cited the passage of the hate crime bill as something that we can attribute to President Obama, and gave credit to the DOJ’s testimony in Congress in support of the bill, and President Obama’s support for it. Surprisingly, Matt referred to Matthew Shepard Act as a heavy lift in Congress, with attacks from both the left and the right. Along with lifting the HIV travel ban, and (perhaps most significantly), the fact that federal agencies can’t discriminate on the basis of gender identity, there seemed to be a feeling that the White House had accomplished a great deal in what’s clearly been a hostile environment for any sort of legislation. The rest of the panel was, however, far from convinced.

I could give a blow by blow of the panel, but a lot of it is familiar to AMERICAblog readers. The DOJ claimed it had a duty to defend all laws so long as they could be constitutional; Jon pointed out numerous instances where the DOJ has not defended a law.

The highlights were as follows:

1) Nobody could explain where ENDA went to, in light of the repeated promises (which were pointed out by the panel) from Pelosi, Barney Frank, and the rest of the Democratic leadership that we would have a vote on this soon. The explanation for this was put on the “worsening political situation,” but as Jon pointed out, the window of opportunity for LGBT legislation is closing. As one panelist put it, “We are eighteen months into the Obama administration with no federal protection based on sexual orientation. This is remarkable.”

It was pointed out that the federal government now bans discrimination in federal employment based on sexual orientation and gender identity. This does not seem a comfort to LGBT individuals facing discrimination in the private industry, but the only person on the panel who thought ENDA had a chance of passing this year was Tobias Wolff, who suggested it could pass in a lame duck session. The rest of the panel seemed to think it was dead.

2) DADT proved surprisingly divisive. Everyone on the panel who discussed it expressed unhappiness that Obama has not issued a stop-loss order to stop expelling soldiers. The DOJ was criticised for arguing that gays and lesbians are only entitled to rational basis protection, which unfortunately Matt didn’t get a chance to address directly. Tobias claims that the repeal only happened this year due to White House pressure, and this is why we saw Ben Nelson and other senators support the compromise. Jon was critical of the compromise, which does not indicate when we will stop expelling gay and lesbian soldiers. And concern was expressed that the Democrats may not pass it before they lose control of the House. What this meant was unclear; several panelists (those not working for the DADT) were also unhappy about the shape of the “survey” about DADT. I think there’s a fear that the survey results will be negative, and then the Democrats will lose control of the House, leaving Obama to say “Too bad, so sad.”

3) Marriage oddly attracted the most attention. Tobias, who was perhaps the most supportive of the president’s position, agreed that “The president is flat wrong. He is in the wrong place on this issue. I spent a year and a half as the campaign’s principal representative saying that on the record,” but no one on the campaign criticized Tobias for disagreeing with the president. Tobias also thought that, “given the existential threats”, such as the economy and health care, it’s not surprising LGBT legislation has gotten so little coverage. Jon disagreed vehemently; as he put it, why can’t the president walk and chew gum at the same time? “It may be the best administration we’ve ever had, but it doesn’t mean we shouldn’t ask for what we deserve.”

Courtney pointed out her role in getting the American Bar Association to pass a resolution supporting the right of same-sex couples to marry, which recently passed overwhelmingly. She didn’t mention it, but I couldn’t help but think that a Democratic president who studied constitutional law is now to the right of the American Bar Association.

There wasn’t time for Q&A; during the panel, but I did get to ask Matt a question afterwards about the DOJ’s stance that it has a duty to defend the constitutionality of all laws. In Perry, Republican governor Schwarzenegger and the Attorney General of California both decided that Proposition 8 was unconstitutional, and argued so in court. This seems to be analogous to Obama deciding that DOMA or DADT were unconstitutional, and so I asked Matt whether he thought California had made the wrong decision by refusing to defend Proposition 8’s constitutionality.

His answer was a bit unclear; he wasn’t sure about how the balance of powers were allocated in California (presumably Schwarzenegger is some sort of God-Emperor whose word is law), and he said Proposition 8 different because it was a constitutional amendment that passed by referendum, unlike a piece of legislation that was passed by Congress. This seems to be a very, very thin reed on which to draw. Matt’s stance is also a bit ironic, because in the campaign for California’s Attorney General, Democrats are urging the GLBT community to donate to the Democratic candidate because he wouldn’t defend Proposition 8. (The GOP Candidate for Attorney General did oppose Proposition 8, but thinks it’s the duty of the government to defend all laws).

I’ll conclude with a comment from Tobias, which seemed to reflect Elaine and Matt’s views as well. He argued that “for the first time, gay Americans have a government which cares about them.” Maybe. But I wonder if any of the soldiers who have been discharged on Obama’s watch think he cares about them. And I wonder if gay couples across the nation think a president who still believes they shouldn’t get married think that Obama is the president we deserve.

-Scott Blair
NYU Law, Class of 2011

Thanks for the excellent report, Scott.


On October 27, 2010, Joe was one of five bloggers who interviewed President Obama. Joe is a DC-based political consultant with over twenty-five years of experience at both the state and federal level. Joe has managed political operations and legislative efforts for both candidates and issues-based organizations. For seven years, he was the Director of State Legislation at Handgun Control, Inc. He served as that organization's first Political Director during the 2000 cycle. Joe is a graduate of the University of Maine School of Law. In addition, he has a Masters in Public Administration from Lehigh University and received his B.A. from the University of New Hampshire. Joe also has a fun dog, Petey, a worthy successor to Boomer, who got Joe through eight years of Bush and Cheney. Joe likes to think he is a world class athlete having finished the 2005 Chicago Marathon in the time of 4:10. He has completed six other marathons as well -- and is still determined to break the four hour mark.

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