Gays + Lesbians Invited to Fund President’s Party That Has No Time For You

From: Andrew Tobias
Sent: Monday, May 18, 2009
Subject: progress and frustration – Part Deux [long – save for later if swamped]

It’s hard to be pleased and angry at the same time. Indeed, I think there are medications for that. And yet I think it’s what a lot of us feel these days.

We’re pleased to have a President we can be proud of . . . pleased to be one Al Franken away from having at least partial control of the Senate (partial, because not all 60 will always follow orders) . . . and pleased to see our issues just one click off the WhiteHouse.gov home page for all to see ( http://www.whitehouse.gov/issues/civil_rights/ ).

But . . . but . . .

There are a lot of buts.

I’m sorry to send such a long email, but there’s a lot to be frustrated about, and those who feel it most acutely deserve a serious response. Don George’s comments at the end are particularly noteworthy.

With the caveat that this is in no way an official email – I never clear these emails with anyone in advance, in hope that one day I will go SO far astray I will at last be fired and get my life back – let me try to address some of the frustration.

Before getting to MARRIAGE and the MILITARY, a quick preamble:

1. I believe Barack and Michelle Obama are truly committed to our equality. It is not their very first priority, but it is real. And that’s true, I think, of people like Nancy Pelosi and Howard Dean (who, now that he is no longer DNC Chair, was able to come out full-bore for Vermont marriage) and our new DNC chair Tim Kaine — and Barney Frank, for that matter, who was the subject of tremendous community ire last year, yet who, to so many of us, is an extraordinary hero.

2. I think we’re going to make a lot of progress in the relatively near future – but I agree with those who feel that, however rapidly it comes, it is – by some measures – not soon enough. How CAN it be? We deserved fully equality from the day we were born. Our Constitution guarantees it.

3. I think we need to keep the pressure on – as in Richard Socarides’s excellent Washington Post op-ed so many have read, and in David Mixner’s comments to the press, to take just two examples – and yet at the same time show our support (as Richard and David are doing with their attendance at the June 25 dinner).

I think we should even allow ourselves to enjoy the milestones, as each one is reached, even though, in a perfect world, they would have been reached earlier.

If we get Gender Identity-inclusive Hate Crimes legislation this summer or fall, and ENDA this fall or winter, let’s not spend TOO much of our energy angry that we didn’t get them this past Spring.

We need to be impatient – and we deserve to be – and yet at the same time, we need to be supportive. The more successful this President is, the better it will be for us.

From what I’ve seen of Law & Order, Bad-Cop/Good-Cop is more effective than bad-cop alone. June 25 is about “good cop.”

4. Our President has a pretty good head for politics. The goals set out on the White House web site are real. I believe we can expect him to move in a deliberate, strategic, pragmatic way to achieve them.

Now to specifics:

RICK WARREN

This sucked. But as hurtful as that was, I believe the goal was to strengthen the President’s ability to govern. The evangelicals would get the invocation; the progressives would get the legislation. The community was absolutely right to express public dismay over Warren’s positions and statements. Indeed, our well-reasoned expressions of dismay may have opened more hearts and minds in the heartland than the Invocation closed – a plus. But even if the President’s instincts should prove to have been wrong and this tactical move does not ultimately help him achieve progressive goals, I think we should at least consider the possibility that that was his intent.

SIGNALS

There have not been enough. But let’s dismiss the ones there have been – ranging from that very public White House agenda to, as silly as it may seem, the invitation of 110 openly gay families to the Easter egg roll. That story made the national TV news. Millions of people saw that our families are deemed by this administration to be as good as any others.

Signals matter. I think we will see more of them.

PRESIDENTIAL APPOINTMENTS

We deserve more than just the couple dozen of note so far. But it’s not nothing that the head of the civil service, with jurisdiction over the treatment of millions of Federal employees, is an openly gay man. Or that the chair of the White House Council of Environmental Quality is an openly gay woman. We need to keep pushing and putting ourselves forward as candidates.

THE MILITARY

This is an issue a lot of us have worked on and invested in for a long time. Aubrey Sarvis at SLDN and Aaron Belkin and Nathaniel Frank at the Michael Palm Center are doing amazing work to repeal DA/DT. They deserve our continued strong support.

And publicly (“bad cop”) it’s fine simply to demand immediate repeal. That’s one of the things that has helped bring public support heavily our way. It is NUTS to separate outstanding servicemen like Arab linguist Dan Choi. A great many Americans get that by now, which is why we may be almost there. Congress doesn’t have to be particularly brave to do this.

But – in the words of Dixon Osburn, who co-founded SLDN and spent 13 years running it – “The notion that the President could do away with Don’t Ask, Don’t Tell with ‘a stroke of the pen’ is misleading.”

Here is his analysis:

<< When I led SLDN, SLDN's legal experts reviewed the question of whether a President could issue an Executive Order to repeal Don't Ask, Don't Tell. The answer is that the Supreme Court would likely have to decide the question. The Constitution grants both the President and Congress certain powers to regulate the armed forces. The Constitution empowers Congress to "raise and support armies" and empowers the President as Commander-in-Chief to nominate and promote certain personnel. The question of whether Congress or the President has plenary authority to regulate gays in the military has never been tested. A Member of Congress who supports the ban on gay service members would likely file suit to challenge the President's Executive order. A Executive Order on this matter would also raise the concern of doing an end run around a Congressionally mandated law. Contrary to the statements that the President has the authority to end gay discharges which led to the belief that an Executive Order could overturn Don't Ask, Don't Tell, the Palm Center Report actually recommends two other actions. The Palm Center itself acknowledges in its report that ultimate repeal of Don't Ask, Don't Tell requires Congressional action. First, the Palm Center concludes that the President could issue an Executive Order which precluded gay discharges under the current stop-loss program. Stop loss prevents those facing discharge because of the end of their term of enlistment from being discharged. Notably, the program does not preclude discharge, it only suspends discharge. Currently, only the Army, Army National Guard and Army Reserve have in place a stop loss program. The Navy, Marine Corps, Air Force and Coast Guard do not. The Army and its reserve components also have stop lossed only specific critical specialties such as infantry and military police, not all specialties. Secretary of Defense Roberts Gates announced in March that he intends to curtail and then cease the stop loss program beginning this summer. Could President Bush have issued a stop loss order that suspended discharge of gay service members post 9-11? Possibly. There were gay service members during the first Persian Gulf War that served openly during the war only to be discharged after the war. The Pentagon would claim that the discharges were suspended only so long as it the service was in a position to conduct a thorough review, and that there was no intent to exempt service members from the gay ban. SLDN specifically sought guidance from the Bush Administration on whether it would extend the stop loss to cover LGB troops , and the Administration said it would not. If the President issued a service wide stop loss again, this may be an avenue to explore. Absent a service wide stop loss, The Palm Center's recommendation would have the practical effect of (1) only delaying LGB discharges until the stop loss were lifted or the President determined that a national emergency no longer existed, unless there was a special gay stop loss program; (2) would only apply to the Army unless a special rule were created for the other services; and (3) would apply to only certain specialties, unless a special rule were to cover all gay soldiers regardless of occupational specialty. The administrative discharges against LGB service members would continue, but any decision to discharge would be held in abeyance until the stop loss were lifted. The Palm Center also recommended that the Secretary of Defense create new rules whereby commanders would no longer make findings under Don't Ask, Don't Tell, and hence halt LGB discharges. The Secretary has authority to promulgate regulations consistent with the law. The Palm Center proposed rule would contravene the law. There are other administrative regulations that the Administration could consider that would ameliorate Don't Ask, Don't Tell, and SLDN may at some point be prepared to recommend those actions. The primary focus for now should be marshaling Congress to enact the Military Readiness Enhancement Act and repeal Don't Ask, Don't Tell outright. It is much too early to discount that strategy. Bottom line: it is simply misleading to suggest that the President could easily end gay discharges with a stroke of the pen. The community needs to focus on building support (1) in the Senate to introduce the Military Readiness Enhancement Act, and (2) in the Pentagon and the services to minimize opposition to Congressional action. >>

I remember going to the Pentagon with Dixon and his SLDN co-founder Michelle Benecke for a tense meeting with the Undersecretary of Defense many years ago. The two of them were terrifically well prepared and tough as nails. We could not have had better advocates – and the same is true of Aubrey now.

As frustrating as it is to have to wait even one day more, I think we have to accept that, in not getting it done in his first four months in office, the President has not betrayed us. He is committed to the goal.

MARRIAGE

In a perfect world, the President would have parted from Senator Clinton and run in the primary supporting marriage equality.

Instead, he called for full repeal of DOMA. That was his position then, that is his position now.

Once achieved, it will have the effect of giving all 1,138 Federal benefits of marriage to any couple – from any state – that takes a trip to Massachusetts or anywhere else they can get legally married.

That’s a very big deal.

I totally get that we wish he could just turn around now, a few months after the election, and – having won – say he now favors marriage equality. Or make a statement congratulating the people of Iowa and Maine and New Hampshire – which amounts to the same thing.

But imagine the press conferences. And think back to how well this kind of early, highly controversial pro-gay advocacy served President Clinton.

I submit for your consideration a post on this topic from Don George, whose thoughtful contributions on LGBT donor listserves some of you may have seen in the past. On Friday, he posted this (in a thread about marriage):

<< First, let me say that you aren't going to get a president to make a major change of his position at press conference with his press secretary. Second, we knew Obama's marriage position when we elected him. Third, we know he is for repealing DOMA, all of DOMA. So the correct follow up question for Jake (or any gay press) would have been (and still is): If the President truly wants to give gays all the rights and benefits of married couples, WHAT IS YOUR PLAN TO GET FROM HERE TO THERE AND WHAT IS YOUR TIME LINE? If we simply press him to do everything he promised during the campaign in a timely manner, we will be in great shape. By repealing DOMA, gay marriages will be recognized by the federal government. The rest of the marriage issue will take care of itself on a state by state basis. Marriage is really a state issue and DOMA is the main role (obstacle) the federal government plays in this battle. The other federal role (after DOMA is repealed) belongs to the Supreme Court to strike down the various state constitutional amendments against gay marriage. (Or Congress to pass federal legislation to mandate such, but that, I believe is a longer time frame.) At some point in time I truly believe Obama will mount the bully pulpit in favor of gay marriage. But the timing is the important factor. If you read Goodwin's "Team of Rivals" you will see the our pre-eminent president on moral issues did not jump on them from the very beginning. He waited until the timing was exactly right. Timing is everything in making sure you bring about the result you want. A good leader cannot get too far out in front of the public. Lincoln himself said that he could not have successfully issued his emancipation proclamation even six months earlier than he did. The public wasn't ready yet and it would have failed. A good leader while simultaneously not getting too far ahead of the public, uses his office to bring the public closer to his position by educating them and leading them there. Lincoln was great at this with his speeches and letters to the nation. Hopefully Obama will start educating the public on gay issues in general and gay marriage and DADT in particular. If a leader is too far ahead of the nation, he cannot make that change and fails.... no matter how moral that position is. (Think Bill Clinton and "Don't ask, don't tell.") Two of Lincoln's contemporaries observed his leadership style. Leonard Swett wanted Lincoln to immediately propose a constitutional amendment abolishing slavery. Lincoln refused and replied that he could see a "time coming" for a constitutional amendment and whoever "stands in its way, will be run over by it" but that the country was not ready just yet. Swett later wrote that the secret to Lincoln's leadership was "by ignoring men, and ignoring all small causes, but by closely calculating the tendencies of events and the great forces which were producing logical results." John Forney, a news reporter at the time, put it another way. Lincoln was "the most truly progressive man of the age, because he always moves in conjunction with propitious circumstances, not waiting to be dragged by the force of events or wasting strength in premature struggles with them." I believe this is the way that it is with Obama and same sex marriage at the moment. Now is not quite the right moment for Obama to take up same sex marriage. It would be a premature struggle that would end as badly as Clinton's trying to lift the ban on gays in the military But when the timing is right, I bet he will do his part grandly. Right now, we should push him to do what he promised to do. Don George, Kardamyli, Greece >>

So there you have it. I am not challenging your frustration – I share it. But I beg you to play Good Cop as well as Bad Cop, and to help this amazing President succeed.

Since sending “part one” a few hours ago, JOAN GARRY and MARY BONAUTO have signed on to join you for dinner in Washington June 25th. My hero Joan led GLAAD for eight years. My hero Mary – of “the other GLAD” with one ‘A’ – was lead counsel on Goodridge v. Department of Public Health, the Massachusetts case that established the right of same-sex couples to marry.

Join us! It’s going to be a great dinner and we need you.

www.democrats.org/LGBTdinner

Thanks!

Andy