by Michael Blim
I don’t begrudge his question parsing or the clarity it brings when he answers the a-bomb lobs of press and public. I really enjoy how he exposes the contradictions in the logic and arguments of others. Most recently, he simply nailed the insurance industry for arguing on the one hand that federal insurance by its nature would be inefficient and costly, while upholding on the other hand how a federal insurance option would drive them out of business. A nice piece of work that exposed the insurance industry position and also laid down a marker of what the industry can expect in the next round in the battle for national health care.
Obama was in grand form Monday afternoon, June 29, as he welcomed 250-odd gay, lesbian, bisexual, and transgender people to the White House to celebrate the 40th anniversary of the Stonewall riots and the birth of a movement. His wife, Michelle, played the straight woman for a couple of ice-breaker jokes and asides. As with other presidents, Obama used his wife’s presence to make the gathering informal and familial, a gesture that might have been touching had lgbt people had families with the same legal footing as Michelle and Barack have
Instead, to judge by the transcript, the event seemed forced. The guests were not invited to witness the signing of a bill or an executive order. No, this was a personal moment, the Obama family welcoming their lgbt friends and families. Though I do not want to demean the occasion, I would have preferred an event with another executive order signing, perhaps reversing “don’t ask, don’t tell,” without Michelle and the family circle chitchat. Because the President had nothing new to say, except to recite his campaign promises, you might think it unfair to think back to Harry Truman’s signing of the military desegregation order. Can you imagine Harry Truman beginning the ceremony with “well, Bess, Margaret and I ….?”
But the contrast clarifies many things. First, this was a feel-good event that substituted for an occasion devoted to law or policy. Second, it was condescending. Obama shifted the focus of the gathering from passing laws to “opening the hearts” of the “good and decent people in this country who don’t fully embrace their gay brothers and sisters…” The theme of moral suasion was swapped for law and policy. The implication too was the we had better get out there and help straight people get over their hatreds and ask them to give us access to the resources and protections they have acquired or have guaranteed to them. He singled out PTA participation as a salutary action undertaken by many lgbt parents to allay straight suspicions. Like the President and Michelle Obama, I come from Chicago, and that experience never taught me the value of the PTA over political power or Constitutional protection. I doubt it did them either.
But because the President speaks of these issues “in front of unlikely audiences – in front of African American church members, in front of other audiences that have traditionally resisted these changes,” he feels entitled to urge his audience to “go thou and do likewise” and convert the nonbelievers while being patient with him, the lawmaker whose mind and heart are already changed. Because he too hails from an impatient minority, and though he admits in a calculated candor that “it’s not for me to tell you to be patient, any more than it was for others to counsel patience to African Americans who were petitioning for equal rights a half-century ago,” he still feels entitled to patience from the lgbt community. After all, out in the gay-hostile world, he’s speaking for us.
Something else of the event I find more disturbing. Beneath the feel-good structure of the event, and the rhetorical bonhomie, the teleprompters were running. Barack Obama is terrific on his feet. He quickly establishes rapport with his audience, responds with care and insight to questions, and knows how to pin an opponent without looking like the bad guy.
But Barack Obama is also a maximal user of the teleprompter, as has been noticed by many journalists. His desire for precision demands it. His desire to “stay on message” and avoid errors requires it, given his multiple briefs. And his lawyerly skill in trimming commitments in this case compel it.
Despite the folksy setting, Obama’s lgbt rights brief Monday showed signs that it had been cleverly crafted. He spoke of rights three times, but not Constitutional rights. Instead he spoke of “basic equality” which has no legal meaning that he as a lawyer well knows. He argued that change should be achieved through laws, in addition to the “hearts and minds” campaigning he recommended repeatedly. He referred to laws ten times. In fact, it would seem surprising that so much must be accomplished by legislation, until one realizes that nowhere has Obama, the lawyer, the constitutional law professor, or the politician asserted that lgbt status deserves the protections of the Bill of Rights. So laws and executive orders have become the tools of choice.
Obama ran carefully chosen rhetoric through the teleprompter that gave the appearance that he believes that the Bill of Rights applies to lgbt people, but offered only specific bills and executive orders to fulfill what others, including me, have come to see as inalienable rights flowing from this country’s founding charters. He achieved his objective with lawyerly adroitness because he doubtless believes that lgbt protections are not guaranteed in the Constitution and that no Supreme Court in his lifetime is likely to grant them.
So Obama, the lawyerly pragmatist, offers inspiration and a series of bills ranging from a domestic partners act to a hate crimes act and the repeal of the Defense of Marriage Act (DOMA). He remonstrates with the audience that “we have a duty to uphold existing law,” a reference to the Justice Department’s defense of DOMA brief. Again he deploys “officer of the court” reasoning that obscures the fact that his Justice Department could have declined to defend DOMA, or prepared a brief against the same-sex married plaintiffs that didn’t throw the legal kitchen sink into the law’s defense.
Rights won via legislation need to find their roots in the Constitution if they are to withstand the reversal of fortunes that visit protected groups over time, and Obama the constitutional lawyer must know this. Surely too the infamous Dred Scott and Plessy v. Ferguson decisions must act as a powerful memory prompt. Lawmaking in both the legislative and judicial senses is necessary to secure Constitutional protections for lgbt people, and the President can propose and advocate laws based on this belief. He has the largest law firm in the country, the Justice Department, at his disposal. And he appoints a judiciary with jurisdiction over the Constitution, its amendments, and congressional efforts to expand the protections of the Constitution to those still unprotected.
Social mores may be moving, as the hearts and minds campaign as well as the American libertarian desire to live and let live, have effect. But mores are finally nothing more than majority opinions gifted with a bit of inertia. They are reversible.
And President Obama must know this in his bones. Yet one finds him on Monday in the role of the great temporizer, a posture that if it becomes characteristic of the Obama presidency, could throw away the chance for progressive change in three generations.
Let someone, be it Obama if he will, or others if he won’t, begin to develop a theory that justifies Constitutional rights for lgbt people and put it before the nation, its legislatures, and courts. This Administration should develop a strategy of how to get it done, or get out of the way of those who want to do it.
As in the postwar civil rights struggles, science may be proving once again an important ally and authority for change. Justice Thurgood Marshall and the other advocates for the plaintiffs in Brown v. Board of Education used social science data to show that segregated education was unequal and deleterious education. Now it is important to analyze what impact the increasing scientific acceptance of a genetic basis for sexual orientation might have on lgbt attempts to find a Constitutional taproot for our rights.
Surely it’s time for the Obama Administration to forsake temporizing, especially as it did in the odious Defense of Marriage Act brief three weeks ago, and develop instead a strategy and program for securing Constitutional protections for lgbt people.
Speaking for rights requires no teleprompters, no feel-good lawn receptions, and no lawyerly softening or obfuscation of the fundamental duties of the law in respect of all of its citizens in a democratic society.
Last Monday, President Obama said: “I want you to know in this task I will not only be your friend, I will continue to be an ally and a champion and a president who fights with you and for you.”
Ok, Barack, so much for the good vibes. Get busy.
Readers: This is the second column on Stonewall. The other posted June 22 can be accessed here. You may find a transcript of the Monday June 29, 2009 White House reception for LGBT Pride Month at http://latimesblogs.latimes.com/washington/2009/06/obama-gay-pride-remarks-lgbt.html