Obama's Bold Move

NOTE: NSD Executive Director Michael Mitchell writes about the very real effects the so-called Golinski brief will have on the fight for LGBT equality.

Last Friday, the Department of Justice filed a brief in a case called Golinski v. United States Office of Personnel Management that is transformative for our movement. In it, the Government lays out many of the ways in which it has been culpable in the discrimination against LGBT people in America, as well as making a strong case a higher level of scrutiny for sexual orientation and gender identity in legal cases - in effect, laying the groundwork to shift the burden of proof from us having to prove why we shouldn't be discriminated against to the other side having to prove why their discrimination is in the government interest. To those of us unschooled in legalese, that may not sound like a big deal, but to folks who are bringing these cases - as Lambda Legal is in Golinski - it makes a world of difference.

As Vice President Biden is wont to say, "This is a big, @#%^& deal."

The effect has been immediately felt: citing the DOJ's brief yesterday, a judge lifted a stay on the injunction against discharges under Don't Ask, Don't Tell,.

I think it's important to contextualize the effect of the DOJ's Golinski brief through a partisan lens. During the time that President Obama was taking heat last month for not coming out specifically for marriage equality, he knew that this brief was being prepared and, being the constitutional lawyer that he is, that it would be a game-changer. This is a Democratic President keeping his promises to the LGBT community.

The President and the Administration have been doing a very admirable job of taking actions that range from simply including LGBT people in government studies, to directing hospitals that receive Medicare and Medicaid to allow same-sex partners into hospital rooms and decision making, to signing big pieces of legislation (the Hate Crimes Act and the repeal of DADT) that directly affect our community. These actions have chipped away in large and small ways at the discrimination we have faced in this country since its founding. In a bold move, the Golinski brief changes the game for the LGBT community, making the environment much better for good decisions in our favor, in effect, moving some of the action from within the Administration into the courts.

Some in our community have downplayed those actions as too small or not enough; until we have full equality under the law, those arguments have some validity. But if you are a lesbian who wants to take time off under the Family Medical Leave Act to take care of the new baby born to your partner, it's a big deal. If you are a gay man whose partner has been tragically hurt in a horrible accident and you are admitted to his hospital room - no questions asked - so you can be at his side, it's a big deal. If you are transgender and unable to travel abroad because your passport lists a gender with which you no longer identify, it's a big deal. If you're a gay or lesbian soldier who wants nothing more than to serve openly, it's a big deal. If you're a young person who is being bullied because the perception is that you're queer, and you see President and First Lady Obama hosting a meeting on eradicating bullying, it's not only a big deal - it's possibly lifesaving.

As a community, we are very quick to criticize, but we are equally reluctant to praise. This behavior has consequences: in the 2010 midterm elections, the percentage of total LGBT voters who voted for Republicans jumped from an estimated 1 in 4 to 1 in 3. Granted, midterms generally see a much lower turnout, but the data strongly suggests that voters who would normally pull the lever for a Democrat simply stayed home instead. With a meme out there that Democrats - and especially, President Obama - weren't working hard enough for us and that the beneficial actions they took on our behalf weren't enough, why wouldn't folks stay home?

I even heard someone say that he would rather have an enemy he knew, than a 'friend' who would stab him in the back. That might make some sense aside from the fact that the Democrats weren't stabbing us in the back; they - especially the Administration - were making progress that may not have been as fast as some activists would have liked, but was still historic. One only has to look at Republican-led legislatures around the country or the House of Representatives to see the very real effects of enemies we know.

Let's walk through just one of those outcomes in a state legislature. Before the 2010 midterms, the LGBT community in Minnesota was preparing to push for civil unions and possibly marriage. They were stunned when both houses in the legislature flipped to GOP control - by less than a total of about 6500 votes across the state combined. Many of those races were lost by razor-thin margins. 

As a community, we need to be accountable to the fact that we were complacent in many places and that meant we lost a lot of races, and control of many legislatures. That statement is in no way meant to denigrate the dogged, amazing hard work of LGBT and ally activists in a very difficult year. However, we have to own up to the fact that many of us believed the spin that Democrats weren't working hard enough for us and therefore we didn't need to work for them. Now, instead of proactive relationship recognition in Minnesota, millions will be spent to fight another spiteful, horrid constitutional amendment - money that will undoubtedly come from across the country and that would have otherwise been used for proactive measures.

To be fair, I've seen some Republican elected officials - especially at the state level - take courageous votes for our equality, most recently in New York with the marriage equality bill. Our equality will continue to depend on bipartisan support. That said, it's a fact that if it weren't for the Democrats who wrote those bills, pushed tirelessly for their passage and provided the vast majority of the votes for them, those Republicans wouldn't have had the opportunity to be brave.

We are not a perfect party. All Democrats are not good on LGBT issues. But after watching the Obama Administration take substantive, life-changing actions on our behalf - like they did so succinctly and brilliantly in the Golinski brief - I am convinced now more than ever that equality will come faster with Democrats leading the way.