President Barack Obama is following through on his promise to make 2014 a “year of action” even if he has to bypass Congress and do it all by himself. But there’s a glaring gap so far in his unilateral efforts: job protection for gay people, who can still be fired at will in 29 states.
With the military setting an example and same-sex marriage winning acceptance at a rapid pace, it’s amazing that being straight can still be a prerequisite for employment. But the firing last month of a lesbian police chief by a homophobic mayor is a stark reminder that prejudice remains a fact of life.
“I can't believe that we still have no equal rights,” former Latta, South Carolina, Police Chief Crystal Moore said after Mayor Earl Bullard fired her on April 15. Moore, who was investigating one of Bullard’s hires, had never received a reprimand in her 20-plus years on the force, until Bullard gave her seven in one day. When she asked to talk to her lawyer, he fired her. The town is now set to vote on June 24 on whether to weaken his authority and give the City Council more, including the power to reinstate Moore.
Crystal Moore was the police chief of Latta, South Carolina, until she was fired on April 15. Jonathan Boncek / Charleston City Paper
Bullard, who took office Jan. 1, denies dismissing Moore because of her sexual orientation. But the popular former police chief and many others in Latta believe otherwise, especially given Bullard’s view of gay people. “I would much rather have somebody who drank, and drank too much, taking care of my child than I had somebody whose lifestyle is questionable around children,” the mayor said in a phone conversation with Councilman Jared Taylor, who made an audio recording of the call. “I’m not going to let two women stand up there and hold hands and let my child be aware of it. And I’m not going to see them do it with two men, neither.”
Obama has hemmed and hawed over signing an executive order that would protect gay, lesbian, bisexual and transgender employees of federal contractors. This wouldn’t have saved Moore’s job; for that we would need the Employment Non-Discrimination Act (ENDA), which would protect all workers against discrimination based on sexual orientation or gender identity. The administration is solidly behind ENDA, but it has been stalled on Capitol Hill for nearly 20 years. A presidential order, by contrast, would immediately protect up to 600,000 people working for federal contractors, according to a 2012 study by the Williams Institute at the University of California, Los Angeles. That would be the right thing to do — and a step in the right direction. There would be, as Vice President Joe Biden told the Huffington Post last week, “no downside.”
Obama is moving forward energetically — and alone — on many other fronts. He has funneled money to priorities such as manufacturing, apprenticeships and wired schools. He has tightened gun regulations, cut emissions, launched an overhaul of overtime rules, changed criteria for deportations, extended and postponed deadlines under the Affordable Care Act, created a new type of retirement savings account and decreed a minimum-wage hike for employees of federal contractors.
Last month Obama signed two executive orders promoting fair pay for women who work for federal contractors. And in what could be a historic move, the administration is soliciting clemency applications from thousands of drug offenders who would no longer be in prison if they had been sentenced under laws and guidelines adopted since 2010.
Nor has Obama ignored gay concerns. The administration said in 2011 that it would stop defending the Defense of Marriage Act, which denied federal benefits to gay married couples and allowed states to refuse to recognize gay marriages performed legally elsewhere. During the 2012 campaign, Obama and Biden each expressed support for gay marriage. Earlier this year, Attorney General Eric Holder said state lawyers do not have to defend discriminatory state laws and bans.
But on gay workplace issues, Obama has chosen a different path. In October 2010, for example, administration lawyers defended the military’s “don’t ask, don’t tell” policy allowing gay troops to serve if they kept their sexual orientation a secret. That same month, Obama said he intended to end the policy but that unlike Harry Truman, who desegregated the military with an executive order, he could not lift “don’t ask, don’t tell” by himself because it was a law passed by Congress. Yet legal experts said at the time that Obama did have options, including discretion to stop defending the law and to stop kicking gay people out of the military. In other words, discretion much like what he and his administration have since used on immigration, health care and gay marriage.
Instead, Obama worked with the military and Congress to make the least disruptive and most permanent wartime transition possible. Fortunately for him and the affected troops, success came quickly. Congress repealed “don’t ask, don’t tell” in December 2010, less than two years after Obama took office.
ENDA has had a longer, tougher road. Vice President Al Gore was set to cast a tie-breaker Senate vote to pass it in 1996, but with 49 yes votes to 50 no votes, it failed. Then-Sen. David Pryor, D-Ark., would have been the 50th yes vote, but he was at home with his son, Mark, who was having cancer surgery. The House did pass ENDA in 2007, but it died in the Senate. Mark Pryor is now a senator himself and was part of a majority approving ENDA last year, but the Republican House does not intend to take it up.
Many of Obama’s executive actions to date will juice up Democratic constituencies such as unions, women, environmentalists and Hispanics in this midterm election year. More fundamentally, as seems to have happened with gay marriage and minimum-wage hikes, they can be useful spurs to state and local action. That’s also what could bring results on the gay job-discrimination front.
The gay job discrimination issue was conspicuously missing from a White House conference call last week on what Obama has achieved with his go-it-alone strategy. Senior adviser Dan Pfeiffer said the administration is trying to “build movements for change … from the bottom up,” and would look for ways “both big and small” to advance the president’s agenda. “We’re not waiting for Congress,” he said. Except apparently when it comes to protecting gays in the workplace. Asked about that, he said there would be no need for an executive order if Congress would pass ENDA. But that was a dodge, since Speaker John Boehner says he has no plans to bring it up in the House.
White House press secretary Jay Carney recently refused to speculate about whether Obama will sign an order banning job discrimination against gays, but he did not dismiss the possibility. In the meantime, we remain a country of patchwork protections, where prejudice can still rob a person of a livelihood.