5 LGBT Victories Obama Can Win in his Second Term

By: Daniel Villarreal

We've thrown the confetti and toasted champagne over the huge LGBT victories on Election Night. But now that President Barack Obama has won a second term, it's time to start working towards the next round of LGBT victories he can secure in the next four years.

Below, we examine the five most achievable goals, discuss their history and suggest action that LGBT activists can take to help build momentum behind them.

1. EXTEND FEDERAL BENEFITS TO SAME-SEX MILITARY SPOUSES - On September 20, 2011 Obama signed a repeal of the anti-gay military policy known as "Don't Ask, Don't Tell" (DADT). But just because LGB people can now serve in the military doesn't mean they're equal.

Because of the so-called Defense of Marriage Act (DOMA), the federal government cannot extend military housing, medical, pension, death or relocation benefits to any soldier's legally-married same-sex spouse. And since it will ultimately take a Supreme Court decision to help overturn DOMA, until then Obama can lay the groundwork by getting the government to extend these benefits to all soldiers equally.

As he did with DADT, Obama will need to resist the impulse to fix this inequality through an easily overturned executive order and instead aim for a congressional law that can withstand future challenges by conservative legislators.

Obama could use his bully pulpit to compel the legislative and military brass into action, but LGBT activists and soldiers will once again need to provide the President with social backing by making a compelling public case that America's soldiers and their families deserve better. No conservative could argue against that... not convincingly anyway.

The sky won't fall after we extend federal benefits to same-sex military spouses. Once Americans see this, extending the same benefits to non-military LGB families won't be far behind.

And while we're at it, how about allowing transgender Americans to enlist as well?


2. SEAT PRO-LGBT JUSTICES - The four gay marriage victories racked up during Election Night could finally encourage the Supreme Court to rule on the constitutionality of DOMA and Proposition 8 — in fact, they're currently considering it.

But even if the Supreme Court does overturn DOMA and Prop 8, future justices could easily reverse their decisions and provide legal cover for a whole new generation of anti-LGBT laws.

Luckily, Obama might have the chance to seat lots of appellate judges and two or three Supreme Court Justices during his second term. These judges and justices would not only affect the ideological makeup of the courts, they'd also establish longstanding legal precedent that will determine LGBT rights for decades to come — decisions that can't easily be changed by Congress or future presidents.

Right now, the Supreme Court has four liberal justices, four conservative justices and a swing justice (Justice Kennedy) who often casts the deciding vote. Any new justices and appellate-level judges will first need Senate approval.

If any conservative justices leave the court, Obama will likely nominate moderate Supreme Court candidates who could win approval from Senate Republicans. However, if Senate Democrats win a filibuster-proof majority during the 2014 midterm elections, Obama could give Senate Republicans the middle-finger and appoint judges as liberal as he likes.

In some ways, Obama's appellate nominees matter even more than his Supreme Court picks — while the Supreme Court hears 75 to 80 cases a year, the appellate courts rule on the over 10,000 cases every year; cases declined by the Supremes whose outcomes determine the legal destinies of state clusters around the U.S.

Indeed, Obama's potential appointees are probably the single most important legacy he could leave behind, a legacy that will endure long after he leaves office.


3. SUPPORT ENDA - The Romney campaign ran on a platform of getting Americans back to work, saying that job opportunities for all Americans help provide a strong foundation for economic growth.

It follows that all companies — from the smallest business to the largest corporation — cannot thrive if its employees worry that their job won't exist the day after tomorrow. So to this end, a gender-Inclusive Employment Non-Discrimination Act (ENDA) reflects conservative economic values.

However, in the past, congressional Democrats have left transgender people out of ENDA legislation in an attempt to make it more palatable to transphobic conservatives who claim that "radical liberals" want to force businesses to hire "men in dresses."

But 30 percent of U.S. states already provide employment protections for trans people. And just last year, the federal Equal Employment Opportunity Commission made a landmark ruling protecting transgender people from employment discrimination under Title VII of the 1964 Civil Right Acts.

So while transphobic conservatives will predictably raise the specter of cross-dressing pedophiles working in day care facilities, they do so at their own peril. Even the GOP cannot ignore the 90 percent of LGBT people who supported Obama in this last election and the 40 percent of those who also donated to his campaign — that's a lot of votes and money to just throw away.

Obama can encourage bipartisan legislators to push for ENDA, but it's unlikely as he has never publicly advocated for trans employee protections; only Vice President Joe Biden has.

And it's also not likely that he will expend political capital for a group still widely misunderstood by most Americans. It will take groups like the National Center for Transgender Equality and the National Gay and Lesbian Task Force to create an awareness campaign that introduces transgender people to Americans who don't know any.

Sadly, ads will have to feature "passable" transmen and transwomen  — that is, those who look like biologically-born men and women — before many Americans accept that transgender folks aren't very different from their own friends and neighbors. 


4. CONTINUE STARVING DOMA - The so-called Defense of Marriage Act (DOMA) remains the single biggest obstacle to achieving LGBT equality. After all, if the federal government doesn't have to recognize the legal marriage between two same-sex spouses, why should anyone else?

During his first term, Obama made five significant moves to undo this unconstitutional law. First, he extended federal employee benefits to the partners and children of LGBT employees without much ado. Second, he ordered his Department of Justice to stop defending DOMA in court.

Third, Obama's Department of Justice submitted a 31-page brief detailing decades of instutional discrimination against gays and lesbians. Fourth, Obama rope-a-doped congressional Republicans into wasting $1.5 million dollars defending the indefensible law in court. And fifth, he voiced support for gay marriage equality, helping shift public opinion in favor of gay nuptials ; then he went a step further by speaking out against anti-gay marriage amendments on state ballots.

He also oversaw the granting of same-sex hospital visitation rights, a hiatus on the deportation of foreign-born same-sex spouses and a federal ruling allowing joint bankruptcy filings by gay couples — all important rights previously forbidden by DOMA.

Soon, the Supreme Court will decide on whether to hear multiple federal cases that have ruled in opposition to DOMA. Obama's actions so far have laid the groundwork for a Supreme Court ruling against DOMA. However, he may hedge his bet and never offer a full-throated endorsement of nationwide marriage equality.

That's because the pro-LGBT Respect for Marriage Act (RMA) would first have to fight its way out of a Republican-controlled House, something that seems unlikely despite the anti-gay albatross still hanging from the GOP's neck.

But until RMA gets its due in the Senate, the IRS could help out same-sex families by no longer taxing the health benefits some employers provide to their LGBT employees. The IRS doesn't tax the same benefits for straight couples and over a lifetime, tax inequality can cost same-sex couples anywhere from tens to hundreds of thousands of dollars  — ouch!

5. REFORM LGBT IMMIGRATION - Because DOMA forbids the federal government from recognizing same-sex marriages, it also denies green cards to the foreign-born, legally married same-sex spouses of U.S. citizens, leaving them vulnerable to deportation at any time.

The Obama Administration has made gradual steps to end this unfair practice. Last August, he ordered the U.S. Immigration and Customs Enforcement (ICE) to reclassify foreign-born same-sex spouses as "low-priority" deportation cases, and this September, Homeland Security Secretary (and big lezzie) Janet Napolitano told ICE field agents "to recognize same-sex partners as family members."

Nevertheless, his administration has stopped short of granting or even holding onto green card applications for same-sex spouses — ICE just flat out rejects them and the Department of Homeland Security said it will continue to do so until DOMA gets overturned.

But according to The Advocate's Andrew Harmon, DHS and ICE "have put a hold on green card applications in other situations where the law is in flux," so the agencies could certainly do the same now... and Obama should.

In the meantime, activists persuade legislators to support the Uniting American Families Act (UAFA), a bill that would allow American citizens and permanent residents to sponsor their same-sex partner for immigration to the U.S..

The bill has died seven times over in Congress. But the large numbers of Latino voters supportive of Obama's Dream Act might also build momentum for the UAFA as another path to American citizenship.