By Robert Schlesinger, Thomas Jefferson Street blog
The New York Times reports today that the Obama administration is trying to figure out how to deal with an incipient controversy over whether the same-sex partners of federal employees can qualify for health benefits.
It is unfortunately an open-and-shut case in two respects: First as a matter of common sense and justice, of course same-sex partners should qualify for spousal benefits. Second as a matter of law, they don't. There's really not much wiggle room here.
And then there's the politics: Balancing the interests of a core Democratic constituency against a desire to cut into a core Republican one and a need to not let "domestic benefits" become the Obama administration's version of "gays in the military."
According to the Times, a pair of judges (one conservative/libertarian, the other liberal) on the federal appeals court in California have issued directives that their employees' gay spouses be given health benefits. Which would be fine if they were ruling from the bench, but they're operating as bosses settling employee disputes. The Federal Office of Personnel Management has warned the judges that the 1996 Defense of Marriage Act limits spousal benefits to mates of the opposite sex.
Obama is on record as wanting to repeal the Defense of Marriage Act and favoring spousal benefits for gay couples. But ... while the Defense of Marriage Act is cheap and offensive, it's also the law. That means the judges can't simply ignore it. The Times quotes New York lawyer and former Clinton adviser Richard Socarides to the effect that Obama "has broad discretionary authority to find ways to ameliorate some of the more blatant examples of discrimination," but it seems unlikely that this authority includes declaring a law void because he thinks it's discriminatory. That sounds an awful lot like a legal doctrine that Obama's predecessor might have endorsed: I don't like this law and have decided that it's illegal so I'm going to ignore it. That sort of thinking was wrong and dangerous regarding torture but would also be wrong and dangerous in this case—presidents don't get to pick and choose which laws they obey.
At least it sounds like there is bipartisan judicial support for eliminating the Defense of Marriage Act. But that requires a law suit, not a president's or judge's fiat.
Then there are the politics. From the Times:
Gary L. Bauer, president of American Values, a conservative advocacy group, said that if Mr. Obama extended benefits to same-sex partners of federal workers, he would "provoke a furious grass-roots reaction, reinvigorate the conservative coalition and undermine his efforts to portray himself as a moderate on social issues."
Gary Bauer and his ilk would like nothing better than for Obama to pick a fight on this issue precisely so that they could whip up a "furious grass-roots reaction." While the president has bent over backward to reach out to that wing of the GOP (presumably less to win them over than to keep them quiescent) the larger issue here is with mainstream voters and with his already burgeoning agenda. Even Obama has to prioritize his agenda and the issue of spousal benefits for gays simply isn't (or shouldn't be) on the same level as salvaging the economy, fixing the health care system, or overhauling education. As a practical matter, the benefits derived from tackling this issue now simply don't match the costs, especially if the cable talkers (with happy GOP help) start focusing on it and suddenly the only way we hear about health care is if it's in relation to gay spouses.
If you doubt minor issues can become the focus of a new president's agenda in that manner, go ask Bill Clinton about airport hair cuts and ... gays in the military.
Perhaps the best way for Obama to deal with this issue right now is to say this: Once his health care overhaul is passed, the issue will be moot because everyone will be covered anyway.
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